01a00748
04-06-2000
Odis Patricia A. Jenkins, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Odis Patricia A. Jenkins, )
Complainant, )
)
v. ) Appeal No. 01A00748
) Agency No. 99-32443-064
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
____________________________________)
DECISION
On October 19, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) issued on September 15,
1999, pertaining to 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.<1> Pursuant to 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified at 29 C.F.R. � 1614.405), the Commission accepts
the complainant's appeal from the agency's final decision in the
above-entitled matter.
ISSUE PRESENTED
The issues presented herein are whether the agency properly dismissed
the present complaint for failure to state a claim and for raising claims
not brought to the attention of an EEO Counselor.
BACKGROUND
The record reflects that on May 6, 1999, complainant initiated contact
with an EEO Counselor. During the counseling period, complainant stated
that as a result of her prior EEO activity, she has been subjected to
a continuous pattern of harassment from her supervisor. Specifically,
complainant stated that the most recent incident occurred on April 21,
1999, when her supervisor yelled at her and verbally attacked her.
However, complainant stated that this harassment has been ongoing since
1995.
Unable to resolve the complaint informally, on June 11, 1999, complainant
filed a formal complainant claiming that she was the victim of unlawful
employment discrimination on the bases of her race (African-American)
and reprisal (prior EEO activity). Complainant's complaint was comprised
of the matter for which she underwent EEO Counseling, discussed above
and complainant also raised four additional claims. The five claims
are as follows:
On April 21, 1999, complainant was verbally attacked by her supervisor;
Complainant was intentionally left out of certain training and
activities;
Complainant was not given proper information, which was vital to her job,
therefore she was made to look incompetent amongst her peers especially
those of another race; and
Racial remarks were uttered towards complainant in the presence of
staff personnel of another race.
Complainant was singled out and made to look like she was not part of
the command.
On September 15, 1999, the agency issued a final decision dismissing the
present complainant for failure to state a claim and for raising claims
that were not raised before an EEO Counselor. Specifically, the agency's
final decision dismissed claim one for failure to state a claim because
as a result of the alleged incident, complainant was not an aggrieved
employee. The agency then proceeded to dismiss claims two through five
because complainant failed to raise these claims with an EEO Counselor.
On appeal, the agency argues two points. First, the agency argues that
claims two through five should be dismissed because they were not raised
before an EEO Counselor, and in the final decision, the agency informed
complainant to contact an EEO Counselor with regards to these issues,
but she failed to do so. Therefore, issues two through five should be
dismissed. Second, the agency argues that the complaint is moot because
the supervisor has been realigned and no longer supervises complainant.
ANALYSIS AND FINDINGS
With regards to claims two through five, Volume 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified and hereinafter cited as 29 C.F.R. �
1614.107(a)(2)) states, in pertinent part, that an agency shall dismiss
a complaint which raises a matter that has not been brought to the
attention of an EEO Counselor, and is not like or related to a matter
on which the complainant has received counseling. A later claim or
complaint is "like or related" to the original complaint if the later
claim or complaint adds to or clarifies the original complaint and could
have reasonably been expected to grow out of the original complaint
during the investigation. See Scher v. United States Postal Service,
EEOC Request No. 05940702 (May 30, 1995); Calhoun v. United States
Postal Service, EEOC Request No. 05891068 (March 8, 1990). In this case,
complainant initially alleged that she has been continuously harassed by
her supervisor since 1995 and complainant recited one incident on April
21, 1999 to the EEO Counselor. Thereafter, in the formal complaint,
complainant alleged four additional incidents of harassment. Clearly,
these claims grew out of the original claim of harassment. Consequently,
the agency's decision to dismiss claims two through five for failure to
raise the claims with an EEO Counselor was improper.
In determining whether a harassment complaint states a claim in cases
where a complainant had not alleged disparate treatment regarding a
specific term, condition, or privilege of employment, the Commission
has repeatedly examined whether a complainant's harassment claims,
when considered together and assumed to be true, were sufficient to
state a hostile or abusive work environment claim. See Estate of
Routson v. National Aeronautics and Space Administration, EEOC Request
No. 05970388 (February 26, 1999).
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Health and Human Services, EEOC Request No. 05940481
(February 16, 1995). Moreover, the Commission has repeatedly found that
remarks or comments unaccompanied by a concrete agency action usually are
not a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. United States
Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United
States Postal Service, EEOC Request No.05940695 (February 9, 1995).
In determining whether an objectively hostile or abusive work environment
existed, the 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. Even if harassing conduct produces
no tangible effects, such as psychological injury, a complainant may
assert a Title VII cause of action if the discriminatory conduct was
so severe or pervasive that it created a work environment abusive to
employees because of their race, gender, religion, or national origin.
Rideout v. Department of the Army, EEOC Request No. 01933866 (November 22,
1995)( citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993))
req. for recons. den. EEOC Request No. 05970995 (May 20, 1999). Also,
the trier of fact must consider all of the circumstances, including the
following: the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's
work performance. Harris, 510 U.S. at 23.
In the case at bar, claim one was dismissed for failure to state a claim.
However, when claim one is examined along with claims two through five
which were improperly dismissed, the Commission finds that all of the
incidents cited in the formal complaint are sufficient, when examined
in their entirety, to state a claim of harassment. Therefore, the
agency's decision dismissing claim one for failure to state a claim was
also improper.
As a final matter, the Commission will address the agency's additional
arguments on appeal. First, with regards to the issue of mootness, volume
64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter cited
as 29 C.F.R. � 1614.107(a)(5)) provides for the dismissal of a complaint
when the issues raised therein are moot. To determine whether the issues
raised in complainant's complaint are moot, the factfinder must ascertain
whether (1) it can be said with assurance that there is no reasonable
expectation that the alleged violation will recur; and (2) interim relief
or events have completely and irrevocably eradicated the effects of the
alleged discrimination. See County of Los Angeles v. Davis, 440 U.S. 625,
631 (1979); Kuo v. Department of the Navy, EEOC Request No. 05970343
(July 10, 1998). When such circumstances exist, no relief is available
and no need for a determination of the rights of the parties is presented.
In this case, the Commission is not convinced that alleged violation
of harassment will not recur because as stated in the agency brief,
complainant's supervisor is still an employee of complainant's activity.
Therefore, the Commission does not consider the instant complaint moot.
Second, with respect to claims two through five, the agency has
argued that in addition to the claims not being �like or related�, the
complainant was afforded an opportunity to raise the issues with an EEO
Counselor, but she failed to do so. Therefore, claims two through five
should be properly dismissed. As stated above, the Commission finds
that claims two through five are �like or related� to the initial claim
raised before the EEO Counselor. Therefore, the claims two through five
should not have been dismissed, and it is irrelevant that complainant did
not contact an EEO Counselor upon receiving the agency's final decision.
CONCLUSION
For the reasons set forth herein, the Commission hereby REVERSES the
agency's decision dismissing the present complaint. Complainant's
complaint is REMANDED to the agency for further processing in accordance
with this decision and applicable regulations.
ORDER (E1199)
The agency is ORDERED 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 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 an
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R1199)
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 a stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
April 6, 2000
Date Carlton M. 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.