05970314
10-01-1998
Nydia M. Riden, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Nydia M. Riden v. Department of the Treasury
05970314
October 1, 1998
Nydia M. Riden, )
Appellant, )
)
v. ) Request No. 05970314
) Appeal No. 01963141
Robert E. Rubin, ) Agency Nos. TD-96-2111
Secretary, )
Department of the Treasury, )
Agency. )
)
)
DECISION ON REQUEST TO RECONSIDER
On December 21, 1996, the Department of the Treasury,(hereinafter referred
to as the agency) timely initiated a request to the Equal Employment
Opportunity Commission (Commission) to reconsider the decision in Nydia
M. Riden v. Robert E. Rubin, Secretary, Department of the Treasury, EEOC
Appeal No. 01963141 (December 5, 1996). EEOC regulations provide that
the Commission may, in its discretion, reconsider any previous decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation, or material fact, or a misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). The agency requests reconsideration pursuant to
29 C.F.R. �1614.407(c)(2). For the reasons set forth below, the agency's
request is denied. We do, however, exercise our discretion to grant
reconsideration on our own motion for the reasons discussed herein.
ISSUE PRESENTED
Whether the previous decision properly reversed the agency's final
decision finding that appellant's allegation of harassment failed to
state a claim.
BACKGROUND
Appellant filed a formal complaint alleging that, based on race
(Hispanic), color (White), sex (female), age (41), national origin
(Mexican), religion (Episcopal) and reprisal (for prior EEO activity)
she was harassed and subjected to a hostile work environment when
critical, humiliating and disparaging remarks were made by management
staff during a meeting on October 6, 1995. Appellant asserted that
the harassment was ongoing, occurred on various dates and created a
hostile work environment. Appellant also repeatedly asserted that she
was not permitted to utilize the assistance of her representative during
EEO counseling. The previous decision reversed the agency's dismissal
of appellant's complaint for failure to state a claim, finding that
appellant's allegation stated a claim because appellant alleged that
the incidents were part of a pattern of harassment. In reaching this
determination, the decision cited the Commission's decision in Osborne
v. Department of the Treasury, EEOC Request No. 05960111 (July 19, 1996),
indicating, in pertinent part, that in Osborne, the Commission held that
"As long as [the appellant in Osborne] alleged that she was harassed
because of her sex, she states a claim under Title VII." Id. The decision
advised appellant to contact an EEO Counselor if she wished to pursue
her allegation, raised on appeal, that the harassment had caused her
"constructive discharge" from the assignment at issue.
In support of its request for reconsideration, the agency asserts that
appellant's reliance on the Osborne decision is misplaced and that the
meeting at issue fails to state a claim of harassment in that it is an
isolated incident without any demonstrated effect on appellant.
ANALYSIS AND FINDINGS
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the agency's
request fails to meet the criteria of 29 C.F.R. �1614.407(c), and it
is the decision of the Commission to deny the request. We do, however,
exercise our discretion to reconsider on our own motion solely to
clarify the previous decision's discussion of the concept of an aggrieved
individual in the context of a harassment 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).
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency shall
dismiss a complaint that fails to state a claim under �1614.103.
In Cobb v. Dept. of the Treasury, EEOC Request No. 05970077 (March
13, 1997), the Commission has recently reaffirmed what is required in
harassment cases in order to state a claim under the aforementioned
regulation. In conjunction with its discussion of existing precedent
in this area, the Commission advised that (1) the ultimate merit of the
allegations (whether they are true/whether discrimination has occurred)
may not be considered<1>; and (2) the complaint should not be dismissed
for failure to state a claim unless it appears beyond doubt that the
complainant can prove no set of facts in support of the claim which would
entitle the complainant to relief. The Commission further instructed that
claims of harassment should be accepted where the complainant has made
factual allegations which, when considered together<2> and treated as
true, are sufficient to state a claim either of (1) disparate treatment
regarding hiring, termination, compensation or any other specific term,
condition, or privilege of employment; or (2) a hostile or abusive
work environment. Cobb, at p. 7. The Commission held that "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....[t]he trier of
fact should consider whether a reasonable person in the complainant's
circumstances would have found the alleged behavior to be hostile or
abusive." Cobb, at pp. 6-7.
While the Commission has held that "a few isolated incidents of alleged
harassment usually are not sufficient to state a harassment claim,"
[Cobb, at p.5], in this case, appellant checked off numerous forms of
adverse action in her informal EEO complaint and has alleged, without
elaboration, that the harassment was ongoing, occurred on various dates
and created a hostile work environment. Appellant further alleged that
the harassment and hostile work environment thereby created resulted in
her loss of a specific desirable assignment as a leader of the agency's
Trade Enforcement Team. Significantly, appellant also repeatedly asserted
that she was not permitted to utilize the assistance of her representative
during EEO counseling. Thus, additional language has been added to the
order of the previous decision to afford appellant the opportunity to
meet with an EEO Counselor in order to more closely define the substance
of her allegations of harassment. A footnote has been added to direct
the agency to consolidate, if practicable, any constructive discharge
allegation raised by appellant with her allegations of harassment.
CONCLUSION
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the agency's
request fails to meet the criteria of 29 C.F.R. �1614.407(c), and it
is the decision of the Commission to DENY this request. The Commission
exercises its discretion, however, pursuant to 29 C.F.R. �1614.407(a)
to reconsider the decision on its own motion. The decision in EEOC Appeal
No. 01963141 (December 5, 1996) remains the Commission's final decision
as clarified herein. The agency is directed to comply with the order
set forth below. There is no further right of administrative appeal from
a decision of the Commission on this request for reconsideration.
ORDER
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. Initially, however, the agency shall afford
appellant the opportunity to meet with an EEO Counselor in order to
more closely define the substance of her allegations of harassment.<3>
The agency shall acknowledge to the appellant that it has received the
remanded allegations within thirty (30) calendar days of the date the
agency receives this decision. 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 the agency receives this decision, 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 acknowledgement to appellant and a copy
of the correspondence 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.
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:
OCT 1, 1998
Date Frances M. Hart
Executive Officer
Executive Secretariat
1In Osborne v. Department of the Treasury, EEOC Request No. 05960111
(July 19, 1996), the Commission stated, in dicta, that as long as the
appellant in that case had alleged that she was harassed because of her
sex, she stated a claim. The Cobb decision clarified that, by this
statement in Osborne, the Commission did not intend to overrule, without
discussion, its longstanding policy and practice of determining whether a
complainant's harassment allegations were legally sufficient to state a
claim. The Commission explained that in Osborne, the agency's conclusion
as to whether appellant's complaint met the definition of sex-based
harassment went to the ultimate truth or merits of her allegation, rather
than to whether her allegations stated a claim and noted that the
Commission has repeatedly reversed such agency dismissals where they were
based on the agency's view of the merits of the case rather than on the
legal sufficiency of the claim.
2The Commission stated that, when considering whether a harassment
complaint states a hostile or abusive work environment claim, the decision
maker must consider all of the alleged harassing incidents and remarks.
3The agency is also directed to consolidate, if practicable, any
allegation raised by appellant concerning her resignation from her
assignment as the leader of the Trade Enforcement Team with her
allegations of harassment herein.