01983089
10-01-1999
Patricia J. Statz, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency
Patricia J. Statz, )
Appellant, )
) Appeal No. 01983089
v. ) Agency No. 9710H1550
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency )
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from the final decision of the agency concerning
her allegation that the agency violated Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. Section 2000e, et seq. The appeal
is accepted by the Commission in accordance with the provisions of EEOC
Order No. 960.001.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to state a claim and mootness.
BACKGROUND
Appellant filed a formal complaint on December 1, 1997, alleging
discrimination on the basis of retaliation for prior EEO activity.
Appellant alleges her supervisor (the Supervisor) retaliated against
her between July 24, 1997, and September 24, 1997, by;
attempting to establish that appellant drafted poorly written memoranda
when he criticized a memorandum she prepared, and, in a mid-year review,
added unreasonable goals to her performance standards, including a note
that she must ensure documents are reviewed and correct before going to
the directorate level;
allowing appellant's subordinate to speak directly to him about a problem
appellant was having with the subordinate, and not allowing appellant to
complain to the next level of management that the supervisor had broken
the chain of command for the subordinate;
giving appellant on August 18, 1997, a letter of concern dated May 17,
1996, containing allegedly false and misleading information on appellant's
performance deficiencies;
making a derogatory personal comment at a meeting about a former co-worker
who had filed an EEO complaint; and
criticizing the condition and cleanliness of the facility appellant
maintained while on a walk-through of that facility with appellant's
new manager.
Appellant also alleges these events, taken together, state a claim of
harassment and hostile work environment.
In its final agency decision dated February 4, 1998, the agency dismissed
allegations (1), (2), (4) and (5) for failure to state a claim and
dismissed allegation (3) for mootness. The agency considered appellant's
claim of hostile work environment with her previous EEO complaints<1>
and determined that the actions taken as a whole did not rise to a level
stating a hostile work environment. This appeal followed.
ANALYSIS AND FINDINGS
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 as "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).
The Commission finds appellant fails to demonstrate an injury, and
therefore, fails to state a claim when she alleges the supervisor
retaliated against her by criticizing her memoranda, allowing appellant's
subordinate to speak directly to him, making a comment about a co-worker,
and criticizing appellant's maintenance of a facility while on a
walk-through of that facility with appellant's new manager. While the
supervisor's comments about the facility were critical of appellant's
work, the new manager could surely determine for himself during the
walk-through whether the facility was clean.
Pursuant to the test set forth in County of Los Angeles v. Davis,
440 U.S. 625 (1979), to determine whether a claim is moot, it must be
ascertained (1) whether it can be said with assurance that there is no
reasonable expectation that the alleged violation will recur, and (2)
if interim relief or events have completely and irrevocably eradicated
the effects of the alleged violation. The Commission finds appellant's
allegation concerning the May 4, 1996, letter of concern given to
appellant on August 8, 1997, is not moot because appellant requests
compensatory damages in both her formal complaint and her appeal. See
Yancey v. Dept. of Health and Human Services, EEOC Request No. 05931195
(July 20, 1994). On remand, the agency shall accept allegation (3)
for processing.
Appellant's allegations do not demonstrate a hostile work environment.
The supervisor's actions are neither sufficiently severe nor pervasive
to rise to a level creating a hostile work environment.
CONCLUSION
Accordingly, the decision of the agency is AFFIRMED in part, REVERSED
in part, and REMANDED in accordance with this order.
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 acknowledgement 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 (T0993)
This decision affirms the agency's final decision 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 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.
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 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 (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. 01, 1999
______________ ___________________________
DATE Carlton Hadden, Acting Director
Office of Federal Operations1 Appellant filed complaints on
February 11, 1997, July 2, 1997, and July 18, 1997.