01a04246
10-20-2000
Patrick J. McDaniel, Complainant, v. Ida L. Castro, Chairwoman, Equal Employment Opportunity Commission, Agency.
Patrick J. McDaniel v. Equal Employment Opportunity Commission
01A04246
October 20, 2000
.
Patrick J. McDaniel,
Complainant,
v.
Ida L. Castro,
Chairwoman,
Equal Employment Opportunity Commission,<1>
Agency.
Appeal No. 01A04246
Agency No. 0-0000034-OK
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated May 17, 2000, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.<2> In his complaint, complainant alleged that he
was subjected to discrimination on the bases of sex (male) and disability
(diabetes) when:
Complainant was subject to harassment which ultimately forced him to
resign his position as a GS-9 Investigator on January 22, 2000.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
The agency noted that complainant attached a diary to his formal
complaint identifying specific incidents of harassment between August
16, 1999, to October 27, 1999. The agency concluded that the incidents
of alleged harassment did not support complainant's claim that he
was subjected to a work environment that was hostile and intolerable.
In addition, the agency dismissed complainant's claim of harassment
pursuant to the regulation set forth at 29 C.F.R. � 1614.107(a)(2) for
untimely EEO Counselor contact. Specifically, the agency noted that
the last incident of alleged harassment occurred on October 27, 1999,
more than forty-five (45) days before complainant sought EEO counseling.
With regard to complainant's constructive discharge claim, the agency
stated that the last incident of alleged harassment identified by
complainant occurred on October 27, 1999, over sixty days prior to
complainant's decision to resign. The agency noted that complainant
submitted a copy of his January 4, 2000 letter of resignation in which
he stated that his resignation was based on thoughtful deliberation and
on complainant's personal feelings about the dislike of the management
style of the office and personal distrust of management. Thus, the
agency argued that complainant's resignation was voluntary and not a
constructive discharge. The agency also stated that complainant did not
allege any timely facts which would suggest that it created intolerable
working conditions which forced complainant to resign.
The record contains a declaration by complainant and a personal diary
in which complainant identifies the alleged incidents of harassment to
include the following: (1) the Area Director (AD) accused complainant
of not performing his job and talking down to minorities; (2) when
complainant did not attend a training session, the AD became very upset;
(3) in September 1999, the AD became upset when complainant and a
co-worker identified themselves as federal investigators during an
on-site investigation; (4) the AD stated that she was not done firing
people; (5) complainant was asked to remove information from the file
of a charging party by the Supervisory Investigator; and (6) in December
1999, complainant's Acting Supervisor accused complainant of making an
error, called complainant an insubordinate and ordered him to fix the
file; complainant was not allowed to defend himself in response to this
accusation and was told that he had written his performance appraisal
for the year.
In determining whether a harassment complaint states a claim in cases
where a complainant has 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 the present case, the Commission finds that the facts alleged by
complainant are sufficient to state a claim of harassment. In his
formal complaint, complainant alleged that he was subject to harassment
which was so severe that it forced him to leave his job. Although the
agency states that complainant voluntarily resigned from his position,
this argument addresses the merits of complainant's complaint, and is
irrelevant to the procedural issue of whether he has stated a justiciable
claim under Title VII. See Osborne v. Department of the Treasury, EEOC
Request No. 05960111 (July 19, 1996); Lee v. United States Postal Service,
EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United States
Postal Service, EEOC Request No. 05910642 (August 15, 1991). Thus,
we find that complainant has alleged sufficient facts to state a claim
of harassment. The agency also dismissed complainant's harassment claim,
excluding the issue of the constructive discharge, as untimely.
The Commission finds that the agency has improperly treated the
complaint in a piecemeal manner. The essence of the complaint is
that complainant was allegedly constructively discharged as result of
the alleged discriminatory harassment. The alleged harassment cannot
be examined separately from the constructive discharge, because the
constructive discharge is the alleged culmination of that harassment.
Therefore, the complaint should be viewed as one claim in which the
discriminatory actions should be seen as continuing until complainant
was allegedly constructively discharged. Complainant did not resign
from his position until January 21, 2000, which was four days prior to
his initial EEO Counselor contact. Therefore, we find that complainant
timely contacted an EEO Counselor.
Accordingly, the agency's decision to dismiss complainant's complaint
was improper and is REVERSED and the complaint, as clarified herein,
is REMANDED for further processing in accordance with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 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 (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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
(R0900)
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
October 20, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1In the instant matter, the Equal Employment Opportunity Commission
is both the respondent agency and the adjudicatory authority. The
Commission's adjudicatory function is separate and independent from
those offices charged with the in-house processing and resolution of
discrimination complaints. For purposes of this decision, the term
�Commission� or �EEOC� is used when referring to the adjudicatory
authority and the term �agency� is used when referring to the
respondent party in this action. The Chairwoman has recused herself
from participation in this decision.
2On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.