Pauletta Hodges-Lewis, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionDec 4, 2000
01A04126 (E.E.O.C. Dec. 4, 2000)

01A04126

12-04-2000

Pauletta Hodges-Lewis, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Pauletta Hodges-Lewis v. U.S. Department of the Navy

01A04126

December 4, 2000

.

Pauletta Hodges-Lewis,

Complainant,

v.

Richard J. Danzig,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01A04126

Agency No. DON-00-00060-060

DECISION

Complainant filed a timely appeal with this Commission from an agency's

decision dated April 11, 2000, dismissing her complaint of unlawful

employment discrimination brought under Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. � 2000e et seq. (Title VII), and the Equal

Pay Act of 1963, as amended, 29 U.S.C. � 206(d) et seq. (the EPA) <1>

The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.

In her complaint, complainant claims sex based wage discrimination under

the EPA in addition to discrimination under Title VII on the bases of

race, sex, and reprisal. Complainant additionally claims retaliatory

harassment and a hostile work environment with respect to her prior EEO

activity consisting of a prior complaint, opposition to the agency's

discriminatory promotion policies, and assisting a co-worker in pursuing

a claim under the EPA.

Complainant contends that although she encumbers a Program Analyst

GS-12 position, she performs many additional duties at the GS-13 level,

such that her position would more accurately be graded at a GS-13 level.

She contends that white males are routinely promoted non-competitively,

through an accretion of duties in such situations, but that blacks and

females must always compete for promotions. Complainant states that she

openly opposed this practice, and also filed two EEO complaints in her

own behalf. As a result of the agency's purported discriminatory policy,

and her EEO activities, complainant claims that she has been subjected

to a variety of adverse actions, sufficiently severe to create a hostile

work environment.

Complainant filed her first complaint regarding this situation, on January

31, 2000, (Agency No. DON-00-00060-049); and she then filed the second

and instant complaint on March 2, 2000.<2>

Complainant sets forth the following claims, in the following order,

in the instant complaint:

On January 9, 2000, the agency announced a Program Analyst GS-11

position which reflected her current GS-13 level duties, resulting in

a �constructive demotion� of her current position;

On January 9, 2000, the agency implemented a reorganization of

complainant's Branch, resulting in a downgrade (�constructive demotion�)

of her position as reflected on an organizational chart;

On January 9, 2000, the agency downgraded (�constructive demotion�)

her position by removing a subordinate from her supervision and placing

the subordinate under the supervision of a white male;

On January 11, 2000, in a meeting with two management officials,

complainant was told that she could not be promoted through an accretion

of duties due to agency personnel policy, but yet others outside of her

protected classes had received such promotions;

On February 8, 2000, complainant was summoned to her supervisor's office,

where she was confronted by the supervisor and a management official, who

threatened her and tried to coerce her into accepting an �award� check for

performance of additional duties, in lieu of a non-competitive promotion,

and also as an inducement for her to desist in her EEO complaints and

other oppositional activities; and,

During the course of the EEO counseling on the instant complaint, her

claims were repeatedly fragmented and mis-characterized, despite multiple

and on-going clarifications from complainant, with the aim of defeating

her complaint, thus constituting interference with the EEO process.

Complainant additionally claims that the above actions resulted in a loss

of professional status among her co-workers, and that agency management

maligned her because of her EEO activities, causing her to be shunned

and alienated. Taken altogether, complainant argues that these actions

constitute harassment and created a hostile work environment.

The agency dismissed claim 5 on the grounds of failure to state a claim

finding that complainant was not aggrieved by being offered an award

check, nor by the comments made by the management officials during the

course of the February 8, 2000 meeting. The agency dismissed claims 1

through 4 on the grounds that they stated the same claims as set forth in

complainant's first complaint (Agency No. DON-00-00060-049). The agency

then dismissed claim 6 finding that it was a spin-off complaint.

On appeal, complainant argues that the agency fragmented her claims

and improperly dismissed the complaint. Complainant states that if

her complaint could be put into two words, they would be �retaliatory

harassment.� Complainant also argues that the agency's decision is

tainted by a conflict of interest because the same agency official

who dismissed the instant complaint was a named responsible management

official in her prior complaint. In response, the agency sets forth

additional justification for its dismissals, addressing the merits of

the claims, and requests that we affirm its decision.

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint that fails to

state a claim. 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,

.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).

Regarding claim 5, we find that complainant has stated an actionable

claim under both the EPA and Title VII. Complainant claims that males

in positions similar to hers, performing essentially the same duties as

she, are compensated at a higher grade level. We find that this states

a claim under the EPA. See 29 C.F.R. �206(d). Complainant additionally

contends that she is being denied a non-competitive promotion due to race,

sex, and reprisal. We find that this renders complainant aggrieved, and

therefore states a claim under Title VII. Moreover, to the extent that

the two identified agency officials threatened complainant with adverse

action if she refused the award check and refused to desist engaging in

the EEO process, we find that this states a claim of interference with

the EEO process because it could have a chilling effect on complainant's

use of the EEO process. See George v. U.S. Postal Service, EEOC Request

No. 05980451 (October 8, 1998); Torrez v. Social Security Administration,

EEOC 05950947(March 10, 1998). Accordingly, we REVERSE the agency's

dismissal of claim 5, and REMAND it for further processing, as set forth

in the ORDER below.

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that

the agency shall dismiss a complaint that states the same claim that is

pending before or has been decided by the agency or Commission.

Regarding claims 1 through 4, we find that the agency has presented

insufficient evidence to show that these are the same claims raised

in the previous complaint. The previous complaint is not in evidence,

and although the agency issued a memorandum permitting complainant to

amend the previous complaint, it is not clear which claims are involved,

or that the amendment was actually processed. The Commission has long

held that the agency has the burden of providing evidence to support its

final decisions. See Ericson v. Department of the Army, EEOC Request

No. 05920623 (January 14, 1993). According, we REVERSE the agency's

dismissal of claims 1 through 4, and REMAND them for further processing,

consistent with the ORDER below.<3>

EEOC Regulation 29 C.F.R. � 1614.107(a)(8), requires that a complaint

that alleges dissatisfaction with the processing of a previously filed

complaint be dismissed. See also Equal Employment Opportunity Management

Directive 110 (EEO-MD-110), at 5-14 (as revised, November 9, 1999).

In claim 6, complainant contends that during EEO counseling her claims

were repeatedly fragmented and mis-characterized. We find that claim

6 involves dissatisfaction with the EEO counseling stage, which is a

processing concern and is properly dismissed pursuant to 29 C.F.R. �

1614.107(a)(8).

Finally, we find that the agency's decision failed to consider

complainant's harassment claim. In the instant complaint, complainant

claims that her request for a non-competitive promotion, based on an

accretion of duties, was met with threats and, in essence, an attempted

bribe with an �award� check. This came after the agency's very limited

�reorganization� in which complainant's position was graded at a GS-13,

(referred to by the agency as an �advisory classification�), but the

position was not reclassified as such. Instead, complainant's accredited

duties where removed from her position, and a new position was created

and advertised for competitive promotion. As a result, complainant's

position was, in effect, downgraded in terms of supervisory responsibility

and professional status, as evidenced by organizational charts before

and after the reorganization. Complainant additionally contends that

management spoke negatively about her EEO activity to co-workers, and

that she was shunned and alienated as a result.

In Harris v. Forklift Systems, Inc., 510 U.S. 17,21 (1993), the Supreme

Court found that harassment is actionable, even absent a claim that

an agency's action harmed complainant in a specific term, condition

or privilege of employment, as long as the complainant can otherwise

demonstrate that the conduct was engaged in with the purpose of creating a

hostile work environment, and also that the conduct is sufficiently severe

or pervasive as to alter the conditions of the complainant's employment.

A complaint should not be dismissed for failure to state a claim unless

it appears beyond doubt that the complainant cannot prove a set of facts

in support of the claim which would entitle the complainant to relief.

The trier of fact must consider all of the alleged harassing incidents

and remarks, and considering them together in the light most favorable to

the complainant, determine whether they are sufficient to state a claim.

Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March

13, 1997).

In this case, complainant claims she was required to perform additional

duties for which she was not compensated, subjected to threats when she

requested a promotion as compensation, denied a promotion, downgraded

in terms of duties, supervisory responsibility, and professional

status, and shunned and alienated in the workplace. We find that

complainant has clearly stated a claim of harassment due to a hostile

work environment under the legal standard set forth above. Moreover, to

avoid fragmenting the claims in the present complaint the agency should

consolidate this matter with complainant's previous complaint (Agency

No. DON-00-00060-049), if possible, in accordance with the regulations.

See 29 C.F.R. � 1614.606.

CONCLUSION

In conclusion, we find that the agency improperly dismissed claims 1-5,

and properly dismissed claim 6. Claims 1-5 are hereby REMANDED for

further processing pursuant to the ORDER below.

ORDER

The agency is ORDERED to take the following actions:

1) Within fifteen (15) calendar days of the date this decision becomes

final, determine whether the present complaint may be consolidated

with the prior complaint, Agency No. DON-00-00060-049, in accordance

with 29 C.F.R. � 1614.606, and notify complainant of the consolidation

determination;

2) Process the remanded claims, as identified herein, 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 consolidation determination, the 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 (T0900)

This decision affirms the agency's final decision/action 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 within ninety (90) calendar

days from the date that you receive this decision 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. 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 (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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

December 4, 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

______________________________

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 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.

2According to the record, the agency issued a memorandum to complainant,

dated February 7, 2000, apparently addressing her request to amend her

prior pending complaint (Agency No. DON-00-00060-049), with some or all

of the claims comprising the instant complaint. The memorandum advised

complainant that she could do so. However, review of the records fails

to indicate that this amendment was implemented.

3Taken together, we find that in claims 1 through 4, complainant is

claiming discrimination regarding two separate actions: the agency's

failure to promote her through an accretion of duties, as well as

the subsequent and separate �constructive demotion.� We find that

complainant is further claiming retaliatory harassment regarding these

both these actions, coupled with the resulting loss in professional

stature which accompanied each.