Nell A. Arvites, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation (FAA), Agency.

Equal Employment Opportunity CommissionJul 6, 2000
01a03106 (E.E.O.C. Jul. 6, 2000)

01a03106

07-06-2000

Nell A. Arvites, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation (FAA), Agency.


Nell A. Arvites v. Department of Transportation (FAA)

01A03106

July 6, 2000

Nell A. Arvites, )

Complainant, )

)

v. ) Appeal No. 01A03106

) Agency No. DOT-6-00-6022

Rodney E. Slater, )

Secretary, )

Department of Transportation (FAA), )

Agency. )

)

DECISION

On March 16, 2000, Nell A. Arvites (hereinafter referred to as

complainant) filed a timely appeal from the February 14, 2000, final

decision of the Department of Transportation (FAA) (hereinafter referred

to as the agency) concerning her 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. The appeal is timely filed (see 64

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

to as 29 C.F.R. � 1614.402(a)))<1> and is accepted in accordance with 64

Fed. Reg. 37,644, 37,659 (to be codified as 29 C.F.R. � 1614.405). For

the reasons that follow, the agency's decision is REVERSED.

The issue presented in this appeal is whether the agency properly

dismissed complainant's complaint on the grounds that she failed to

state a claim and failed to raise issues during EEO counseling.

Complainant filed a formal complaint on December 6, 1999. The agency

dismissed her complaint, finding that she failed to state a claim, that

she failed to bring issues to the attention of an EEO counselor within

45 days of the events identified, and that she did not provide sufficient

excuse for extension of the time period nor state a continuing violation.

Complainant stated that her complaint alleges "hostile work environment

sexual harassment" by a male co-worker (E1). She claimed generally that

E1 criticized her work, yelled at her, and replicated her work activities,

about which the agency took no action. She identified several events

and contended, on appeal, that E1's actions against her were ongoing.

We find that the agency's piecemeal approach to the complaint acts to

fragment complainant's claims into separate parts, thus ignoring her

general claim of harassment. In our final rule issued July 12, 1999,

amending our regulations, we specifically expressed our concern about

the fragmentation of complaints, especially those alleging harassment

and a continuing violation. 64 Fed. Reg. 37,644, 37,648.<2>

The Commission identifies two types of harassment that could result in

liability: harassment that results in a tangible employment action

and harassment that creates a hostile work environment. Enforcement

Guidance: Vicarious Employer Liability for Employer Liability for

Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June

18, 1999). In her complaint, we find that complainant states a claim

of harassment based on a hostile working environment. In determining

whether a harassment complaint states a claim, in general, the Commission

considers whether the allegations, when considered together and assumed

to be true, are sufficient to state a claim that the complainant may

have been subjected to harassment that was sufficiently severe or

pervasive enough to alter the conditions of his or her employment.

Carroll v. Department of the Army, EEOC Request No. 05970939 (April 4,

2000); Cobb v. Treasury, EEOC Request No. 05970077 (March 13, 1997).

Because the agency's decision fragments her complaint into 15 separate

issues, thus ignoring her overall claim of harassment (gender-based) or

whether she alleges a continuing violation, and is unclear as to which

allegations are dismissed (see Paragraph 4, page 4), we are remanding

the complaint to the agency to process her claim, without fragmentation

into numerous statements of supporting detail. Inasmuch as complainant

has alleged an ongoing pattern of harassment, the agency should accept

her claim of gender-based harassment and investigate all component parts

identified in its decision. The agency is also directed to meet with

complainant to frame her complaint in accordance with the decision herein.

Thereafter, her complaint should be processed and investigated according

to Commission regulations.

CONCLUSION

Accordingly, the agency's decision is REVERSED, and the agency is directed

to comply with the Order, below.

ORDER

The agency is ORDERED to acknowledge to the complainant that it has

received the remanded claims within thirty (30) calendar days of the

date this decision becomes final and to meet with complainant within

ten (10) calendar days thereafter to properly frame her complaint in

accordance with the decision herein. Thereafter, the agency is directed

to process the remanded claims 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 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 (R0400)

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 (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:

07-06-00

Date Carlton Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________ ______________________

Date

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.

2The Commission stated that "agencies are not properly distinguishing

between factual allegations in support of a legal claim and the legal

claim itself." Id.