0120082573
12-17-2009
MARY PARNELL, COMPLAINANT, v. ERIC K. SHINSEKI, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, AGENCY.
MARY PARNELL, COMPLAINANT,
v.
ERIC K. SHINSEKI, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, AGENCY.
Request No. 0520100031
Appeal No. 0120082573
Agency No. 200I05732008100968
DECISION ON RECONSIDERATION
The Commission previously issued a decision in Mary Parnell v. Department of Veterans Affairs, EEOC Appeal No. 0120082573 (September 25, 2009). EEOC Regulations provide that the Commission may, in its discretion, reconsider any previous Commission decision where the requesting party demonstrates that: (1) the appellate decision involved a clearly erroneous interpretation of material fact or law: or (2) the appellate decision will have a substantial impact on the policies, practices, or operations of the agency. See 29 C.F.R. � 1614.405(b). For the reasons set forth below, the Commission reopens and reconsiders the previous decision on its own motion.
Complainant alleged that she was discriminated against in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., on the basis of race (Black) when on August 3, 2007, a co-worker stated to complainant, "I see your family coming in and your big, fat monkey," referring to complainant's five-month old granddaughter. Later, when complainant asked the co-worker what she meant by the remark, the co-worker stated that she "was talking about [complainant's] big fat monkey yucky."
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. � 1614.103, 106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
This case rests solely on the remarks made by complainant's co-worker, and does not involve a traditional adverse employment decision. In our previous decision, we found that the isolated remarks referring to complainant's granddaughter did not render complainant aggrieved and were insufficiently severe or pervasive, by themselves, to state a claim of harassment. However, it is well-established that the use of historically racial epithets or slurs in the workplace may constitute harassment based on race and violate Title VII. The Commission has held that, under certain circumstances, a limited number of highly offensive slurs or comments about a federal employee's race or national origin may in fact state a claim under Title VII. See EEOC Compliance Manual, Section 15, "Race and Color Discrimination", No. 915.003, 15-38 (April 19, 2006) (A single incident of a racial comparison to an animal may create a hostile work environment); Brooks v. Department of the Navy, EEOC Request No. 05950484 (June 25, 1996) (citation omitted); Williams v. United States Postal Service, EEOC Appeal No. 0120092247 (July 22, 2009) (The Commission found that complainant's allegation that he was referred to as "Monkey Boy" and as a "fucking nigger" stated a claim of discrimination). See also Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001) ("To suggest that a human being's physical appearance is essentially a caricature of a jungle beast goes far beyond the merely unflattering; it is degrading and humiliating in the extreme,"); Cerros v. Steel Technologies, Inc., 288 F.3d 1040, 1047 (7th Cir. 2002) (While there is no magic number of slurs that indicate a hostile work environment, an unambiguously racial epithet falls on the "more severe" end of the spectrum). Here, while the remarks may be isolated remarks, we find that they contain historically offensive slurs towards complainant's race, and therefore state a claim of discrimination.
As a result, we REVERSE our previous decision in Mary Parnell v. Department of Veterans Affairs, EEOC Appeal No. 0120082573 (September 25, 2009), and REMAND the complaint to the agency for an investigation in compliance with the Order set forth herein.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with 29 C.F.R. �1614.108. The agency shall acknowledge to the complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The agency shall issue to complainant a copy of the investigative file and also shall notify complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the complainant requests a final decision without a hearing, the agency shall issue a final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory. The agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer. Office of Federal Operations. Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the complainant. If the agency does not comply with the Commission's order, the complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
COMPLAINANTS RIGHT TO FILE A CIVIL ACTION (R0408)
This is a decision requiring the agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
Stephen Llewellyn
Executive Officer
Executive Secretariat
December 17, 2009