Patrick J. McDaniel, Complainant,v.Ida L. Castro, Chairwoman, Equal Employment Opportunity Commission,<1> Agency.

Equal Employment Opportunity CommissionOct 20, 2000
01a04246 (E.E.O.C. Oct. 20, 2000)

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.