Monica Rudd, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionJul 6, 2000
01992683_01a01396 (E.E.O.C. Jul. 6, 2000)

01992683_01a01396

07-06-2000

Monica Rudd, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Monica Rudd, )

Complainant, )

) Appeal Nos. 01992683

v. ) 01A01396

) 01A01397

Lawrence H. Summers, ) Agency Nos. 994062

Secretary, ) 994076

Department of the Treasury, ) 994077

Agency. )

____________________________________)

DECISION

Complainant filed three timely appeals with this Commission from agency

decisions dated January 15 and 22, 1999.<1> Through its discretion,

the Commission has consolidated these three cases. 64 Fed. Reg. 37,644,

37, 661 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �

1614.606).

On January 15, 1999, the agency issued Decision 1 (EEOC Appeal

No. 01992683) which dismissed the complaint pursuant to 64 Fed. Reg. 37,

644, 37, 656 (1999) (to be codified and hereinafter cited as 29 C.F.R. �

1614.107(a)(1)) for failure to state a claim and for raising the same

claims in an earlier EEO complaint. In her December 8, 1998 complaint,

complainant alleged that the agency discriminated against her on the

bases of race (Black), color (Black), religion (Christian), sex (female),

and in reprisal for prior EEO activity when:

on November 2, 1998, a co-worker yelled at complainant and called

complainant names, and the manager took the co-worker's side;

on November 4, 1998, EEO counselor (A) told complainant to go to the

union because the complainant did not have an EEO complaint;

on November 15, 1998, a co-worker picked on complainant and made the

complainant count 300 cards;

on November 24, 1998, the EEO specialist failed to notify an EEO

counselor that the complainant needed EEO counseling for another

complaint;

on November 24, 1998, an agency inspector yelled at the complainant;

on December 2, 1998, complainant's manager refused to give complainant

an additional week of on the job training;

on December 2, 1998, a co-worker and a Union steward told complainant

that someone had a problem with the complainant praying for them;

on November 24, 1998, the complainant received notices that she owed

the government money for overpaid benefits and missed loan payments;

during an unspecified time period, the complainant's loan paperwork

could not be located; and

since February 1998, the union collected dues from complainant's pay

check.

The agency found that the complainant had not shown that she was harmed

or adversely affected by claims 1 through 7. Also, the agency found

that claim 8 stemmed from a prior EEO complaint (regarding a suspension)

and dismissed claim 8 for stating the same claim as a prior matter.

In addition, the agency found that claims 9 and 10 fail to state a claim

against the agency because they involved the processing of complainant's

loan paperwork by the Department of Education and the collection of union

dues by the union. Consequently, the agency found that complainant was

challenging actions which were not taken by the agency.

On January 22, 1999, the agency issued Decision 2 and Decision 3 (EEOC

Appeal Nos. 01A01396 and 01A01397) which dismissed two complaints for

failure to state a claim. 29 C.F.R. � 1614.107(a)(1).

In her complaint of December 27, 1998, complainant alleged that the

agency discriminated against her on the bases of race (Black), sex

(female), and in reprisal for prior EEO activity when:

on December 10, 1998, EEO counselor B assigned to her case told her

that she accidentally shred the �authorization to reveal identity of

complainant during informal counseling� and requested complainant to

provide a duplicate;

on December 14, 1998, she observed several agency employees completing

a police report; and

on December 27, 1998, her request to meet with a senior agency official

was not addressed.

In another complaint dated December 27, 1998, complainant alleged that

the agency discriminated against her on the bases of race (Black), sex

(female), religion (Christian), and in reprisal for prior EEO activity

when:

on December 18, 1998, complainant's manager instructed her to remove

an angel pin from the lapel of her U.S. Customs Service uniform;

on December 23, 1998, a co-worker told complainant that her manager

was questioning one hour of overtime on complainant's time record; and

on December 24, 1998, a co-worker yelled at complainant and stated that

she was in trouble when she returned from lunch.

The agency found that complainant had not shown that she was harmed or

adversely affected with regard to the matters raised in her complaints

of December 27, 1998.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 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).

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 the harassment to which the

complainant has been subjected was sufficiently severe or pervasive to

alter the conditions of the complainant's employment.

The Commission has repeatedly found that a remark or comment unaccompanied

by concrete agency action is not usually a direct and personal deprivation

sufficient to render an individual aggrieved for the purposes of Title

VII. Backo v. U.S. Postal Service, EEOC Request No. 05960227 (June 10,

1996); Henry v. U.S. Postal Service, EEOC Request No. 05940625 (February

9, 1995). However, 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 (March 13, 1997).

In her complaints, complainant alleged a series of events which allegedly

occurred from November through December 1998. Specifically, she

alleged that she was subjected to harassment which created a hostile

work environment. Instead of treating these events as incidents of

harassment, the agency looked at them individually. Thus, we find that

the agency acted improperly by treating matters raised in the complaints

in a piecemeal manner. 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 claims and define the

issues in a piecemeal manner where an analogous theme unites the matter

complained of). Consequently, when the claims are viewed in the context

of harassment, they state a claim, and the agency's dismissal of those

claims was improper. As defined herein, a complaint of harassment is

set forth in claims 1, 3, 5, 6, 7, 8, 13, 14, 15, and 16.

EEOC Regulation 29 C.F.R. �1614.107(a)(1), in relevant part, also

provides for the dismissal of a claim that states the same claim that

is pending before or has been decided by the agency. Regarding claim

8,we find that this matter is not identical to that raised in the

prior EEO complaint. According to the record, complainant raised the

issue of her 30-day suspension in a prior October 20, 1998 EEO complaint

(Agency No. 99-4018M); however, she did not raise the issues of overpaid

benefits or missed loan payments. Consequently, we find that the issue

of whether complainant was subjected to discrimination when she was

informed that she owed monies for overpaid benefits and missed loan

payments is a distinct analysis from that resulting from the issue of

whether she was discriminatorily issued a 30-day suspension. Therefore,

we find that the agency's dismissal of claim 8 was improper.

With regards to claims 2, 4, and 11, we find that these incidents

involve complainant's dissatisfaction with the EEO processing of her

complaint. Volume 64 Fed. Reg. 37, 644, 37,656 (1999)(to be codified

and hereinafter referred to as 29 C.F.R. �1614.107(a)(8)) provides that

the agency shall dismiss a claim that alleges dissatisfaction with the

processing of a previously filed complaint. Accordingly, claims 2, 4,

and 11 were properly dismissed.

With regard to claims 9 and 10, we find that complainant failed

to identify any action by the named agency. The agency is not the

responsible party involved and did not adversely affect or otherwise

discriminate against complainant. It appears that the loan paperwork

was misplaced by the entity handling the loan application, i.e., the

Department of Education, and the dues were being collected by the union.

Consequently, we affirm the agency's dismissal of claims 9 and 10.

Finally, the Commission finds that claim 12 fails to state a claim.

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). Complainant did not suffer a harm or

loss because of the actions of the agency employees. Complainant has

not shown that she was the subject of the police report or that the

agency took any adverse action against her based on a police report

filed by agency employees. As a result, this claim must be dismissed.

The agency's dismissal of claim 12 is AFFIRMED.

Finally we note that complainant has a remaining EEO complaint, Agency

No. 994018, in which she alleges harassment. Whenever a complainant

files two or more complaints with substantially similar allegations

of discrimination or relating to the same matter, the agency should

consolidate the complaints for joint processing. See 29 C.F.R. �1614.606.

The Commission strongly recommends that the agency process these remanded

claims (from Agency Nos. 994062, 994076, and 994077) in conjunction with

the processing of Agency No. 994018.

Accordingly, the agency's dismissal of claims 1, 3, 5, 6, 7, 8, 13, 14,

15, and 16 is REVERSED and REMANDED. The agency's dismissal of claims 2,

4, 9, 10, 11, and 12 is AFFIRMED.

ORDER

The agency is ORDERED to process the remanded claims (1, 3, 5, 6,

7, 8, 13, 14, 15, and 16) in accordance with 64 Fed. Reg. 37,644,

37,656-7 (1999) (to be codified and hereinafter referred to as 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 (K1199)

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

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish 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.

Requests to reconsider, with supporting statement or brief, MUST BE FILED

WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF

RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

All requests and arguments must 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 timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.604). The request or opposition must

also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed AND that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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. If you file

a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

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:

July 6, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1On November 9, 1999, revised

regulations governing the EEOC's federal sector complaint process

went into effect. These regulations apply to all federal sector

EEO complaints pending at any stage in the administrative process.

Consequently, the Commission will apply the revised regulations found

at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.