01990846
09-07-1999
Maurice Morrison, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Maurice Morrison v. Department of the Navy
01990846
September 7, 1999
Maurice Morrison, )
Appellant, )
)
v. ) Appeal No. 01990846
) Agency No. 98-65923-028
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
On November 4, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated October 22, 1998, pertaining
to his complaint of unlawful employment discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq. and �501 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. �791 et seq. In his complaint, appellant alleged that he was
subjected to discrimination on the bases of mental disability (stress)
and in reprisal for prior EEO activity when:
Appellant was forced to resign effective June 13, 1998, due to
harassment;
On May 18, 1998, appellant was issued a notification of Proposed
Suspension from employment due to harassment;
Management rotated supervisors to write-up appellant;
Management failed to protect appellant from the threats and/or insults
of supervisors; and
One of appellant's supervisors told another employee that he (the
supervisor) wanted appellant out of the depot.
The agency accepted allegations (1) and (2), but dismissed allegations
(3), (4), and (5) pursuant to EEOC Regulation 29 C.F.R. �1614.107(a),
for failure to state a claim. Specifically, the agency found that
supervisors rotated "so they may broaden their knowledge of the
difficult situations that may occur on the various shifts and satisfy
the requirement that employees are under the same supervisor for 120
days for performance appraisal purposes." The agency also found that
allegation (4) was deficient because appellant failed to provide specific
dates or information to prove harm to a term, condition, or privilege of
employment. Regarding allegation (5), the agency found that appellant
was not harmed, noting that there were no witnesses identified and
appellant did not provide any specific dates or information about the
alleged remark.
On appeal, the agency argues that appellant never alleged direct harm with
respect to allegations (3), (4), and (5), and that the allegations, even
if considered in light of appellant's accepted allegations, do not form
a pattern of harassment severe enough to state a cognizable claim.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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;
�1614.106(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 (Apr. 21, 1994).
The Commission finds that the agency, in its FAD, addressed the merits of
allegations (3) and (4) without a proper investigation as required by the
regulations. The agency's articulated reason for the action in dispute,
i.e., that supervisors were rotated to broaden their knowledge of the
different shifts and that there were no witnesses to support allegation
(4), goes to the merits of appellant's allegations, and is irrelevant
to the procedural issue of whether he has stated a justiciable claim
under Title VII. See Osborne v. Department of the Treasury, EEOC Request
No. 05960111 (July 19, 1996); Lee v. United States Postal Service, EEOC
Request No. 05930220 (Aug. 12, 1993); Ferrazzoli v. United States Postal
Service, EEOC Request No. 05910642 (Aug. 15, 1991).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment" is created when "a reasonable person would find [it]
hostile or abusive: and the complainant subjectively perceives it as
such." Harris, supra at 21-22. Thus, not all claims of harassment are
actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (Mar. 13,
1997).
Regarding allegation (5), the agency's reasoning relies on appellant's
failure to provide information, without the agency having made a formal
request for such information from appellant. Further, appellant alleged
that he was subjected to hostile work environment harassment, and various
forms of adverse action, that ultimately forced appellant to resign.
See Riden v. Department of the Treasury, EEOC Request 05970314 (Oct. 2,
1998) (finding that a complainant who alleges numerous forms of adverse
action and ongoing hostile work environment harassment, culminating
in the loss of a specific assignment, stated a claim). Instead of
treating these events as incidents of the claim of harassment, however,
the agency looked at them individually. Thus, we find that the agency
acted improperly by treating matters raised in appellant's complaint in
a piecemeal manner, and fragmenting his claim by accepting only certain
incidents, rather than the entire claim. See Meaney v. Department of
the Treasury, EEOC Request No. 05940169 (November 3, 1994) (an agency
should not ignore the "pattern aspect" of a complainant's allegations and
define the issues in a piecemeal manner where an analogous theme unites
the matter complained of). Consequently, when appellant's allegations
are viewed in the context of appellant's complaint of harassment, they
state a claim and the agency's dismissal of those allegations for failure
to state a claim was improper.
CONCLUSION
Accordingly, the agency's decision is REVERSED, and allegations (3),
(4), and (5) are REMANDED for further processing.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that you
have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
Sept. 7, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations