01990385
10-06-1999
Patricia J. Statz, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Patricia J. Statz v. Department of the Army
01990385
October 6, 1999
Patricia J. Statz, )
Appellant, )
)
v. ) Appeal No. 01990385
) Agency No. BXCJFO9805I0480
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
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 final decision was issued on September
14, 1998. The appeal was received by the Commission on October
21, 1998. Accordingly, the appeal is considered timely<1> (see 29
C.F.R. �1614.402(a)), and is accepted in accordance with EEOC Order
No. 960, as amended.
On August 5, 1998, appellant, an agency Youth Services Program Manager,
filed a formal complaint, alleging that she was the victim of unlawful
employment discrimination on the bases of sex and reprisal. Appellant's
complaint contained an attachment that addressed a variety of incidents of
alleged discrimination. At the conclusion of the attachment, appellant
stated that she had been the victim of harassment and intimidation by
agency Supervisors. Appellant further stated that she has had many
of her job duties removed without justification; and that the alleged
discriminatory actions have harmed her reputation as a Supervisor who
is capable of managing her organization.
On September 14, 1998, the agency issued a final decision. Therein,
the agency found that appellant's formal complaint addressed incidents
of harassment that occurred between April 28, 1998 and June 30, 1998.
The agency determined that the incidents of harassment were comprised
of thirteen allegations, identified in the following fashion:
a. You were not informed that your Supervisor (the former Community
Recreation Officer [CRO]) . . . was leaving for another job or that
[another agency official] had been assigned as your Supervisor.
b. The Executive Officer . . . questioned you through your staff about
a minor item while ignoring major needs of Youth Services.
c. You were not offered the opportunity to serve as Acting CRO upon
the CRO's departure.
d. The former CRO required unnecessary changes to the performance
ratings of your staff.
e. [An agency official] created a memorandum containing false and
misleading accusations regarding a computer room not being opened by you,
and the Acting CRO signed off on the memorandum despite knowing you had
no responsibility to open the computer room.
f. [Three agency officials] facilitated a meeting with Division Artillery
officers concerning the Youth Services program where the . . . officers
made false accusations about the Youth Services Program and staff.
g. Your supervisors made false accusations against you about the computer
instructor contract not being awarded.
h. The Acting CRO attempted to start attending Youth Services meetings,
thus taking away your responsibility and the respect of your staff.
i. Information about changes in acquiring contract buses was withheld
from you by the Acting CRO.
j. The Acting CRO made improper negative statements about one of your
staff to another staff member.
k. The Acting CRO indicated to a Youth Services staff member that the
Youth Services Sports Director does not have enough responsibility to
be in his current grade.
l. [An agency official] and Acting CRO held a meeting to set up a chart
of Youth Services functions without including Youth Services staff while
you were on sick leave.
m. The Acting CRO made unnecessary calls to the Youth Services Sports
Director concerning transportation for the sports program.
The agency accepted allegation (c) for investigation. The agency
dismissed allegations (a) and (b), and allegations (d) - (m) for failure
to state a claim. The agency noted that appellant alleged that she
was the victim of harassment, but determined that the matters addressed
in the dismissed allegations were not sufficiently severe, egregious,
or frequent to establish a hostile work environment. The agency noted,
moreover, that allegations (j), (k), and (m) addressed actions directed
at other employees.
EEOC Regulation 29 C.F.R. �1614.107(a) provides for the dismissal
of a complaint which fails to state a claim within the meaning of
29 C.F.R. �1614.103. In order to establish standing initially under
29 C.F.R. �1614.103, a complainant must be either an employee or an
applicant for employment of the agency against which the allegations of
discrimination are raised. In addition, the allegations must concern an
employment policy or practice which affects the individual in his capacity
as an employee or applicant for employment. 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 (April 21, 1994).
In her formal complaint, appellant alleged that as a result of the
incidents addressed in allegations (a), (b), and (d) - (m), she was
harassed by agency officials in such a fashion that her reputation
and organizational abilities as an agency Manager were impugned.
The Commission has previously held that an agency should not ignore the
"pattern aspect" of a complainant's allegations and define the issues
in a piecemeal manner where an analogous theme unites the matters
complained of. Meaney v. Department of the Treasury, EEOC Request
No. 05940169 (November 3, 1994). By alleging a pattern of harassment,
appellant has stated a cognizable claim under the EEOC regulations.
See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993).
Accordingly, the agency's decision to dismiss allegations (a), (b), and
(d) - (m) was improper and is REVERSED. Allegations (a), (b), and (d) -
(m) are REMANDED to the agency for further processing in accordance with
this decision and applicable regulations.
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 acknowledgment 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 (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:
October 6, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 The dismissal of a complaint or a portion of a complaint may be
appealed to the Commission within thirty (30) calendar days of the date
of the complainant's receipt of the dismissal or final decision. See 29
C.F.R. �1614.402(a). Because the agency failed on appeal to supply
a copy of the certified mail receipt or any other material capable of
establishing that date, the Commission presumes that the appeal was filed
within thirty (30) calendar days of the date of appellant's receipt of
the final decision.