01a00232
07-06-2000
Phyllis M. Holliday, Complainant, v. William S. Cohen, Secretary, Department of Defense (Defense Logistics Agency), Agency.
Phyllis M. Holliday v. Defense Logistics Agency
01A00232
July 6, 2000
Phyllis M. Holliday, )
Complainant, )
)
v. ) Appeal No. 01A00232
) Agency No. JQ-99-027
William S. Cohen, )
Secretary, )
Department of Defense )
(Defense Logistics Agency), )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated September 8, 1999, dismissing 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 Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.;
and Section 501 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. � 791 et seq.<1> This appeal is accepted in accordance with 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
Whether complainant failed to state a claim when she alleged that
she was subjected to discrimination on the race (African-American),
sex (female), age (d.o.b., 1/24/44), and physical disability (lifting
restriction) when, on February 2, 1999, the complainant's supervisor did
not respond when she requested the supervisor's (Responsible Management
Official (RMO1)(Caucasian, male) assistance in dealing with a co-worker
(Co-worker A)(Caucasian, male) who made derogatory statements to her.
BACKGROUND
At the time this dispute arose, complainant was employed by as a Mail
Handler/Packer,GS -5, in the agency's New Cumberland Depot, Pennsylvania
facility. Complainant states that since the beginning of her employment
she has endured a racially hostile environment based largely on the
behavior of Co-worker A named herein, and the alleged unwillingness
of her supervisor and management to rectify the hostile environment.
Complainant states that this hostile situation came to head on February 2,
1999, when RMO1 failed to respond to a verbal altercation between herself
and Co-worker A. Specifically, complainant stated that on the day in
question, she was working with Co-worker B (African-American, male) in
the vicinity of Co-worker A when Co-worker B became upset about finding
his name on a box. A heated dialogue began between Co-workers A and B
wherein complainant interjected by saying to Co-worker A, �your being
mean today.� In response to the complainant's comment, Co-worker A used
exceedingly offensive language and racial slurs. Complainant became
upset and called RMO1 for assistance. RMO1 told complainant that he
would be right down, but never came. Complainant stated that she �was
terrified.� Complainant stated that while she was calling RMO1, Co-worker
A was talking to fellow co-workers and seemed proud of what he had done.
She further stated that because she felt the need for protection she went
the Security office and waited for RMO1 to show up. Complainant stated
RMO1 never came to complainant's aid.
In her brief in support of her appeal, complainant stated that she was
unable to reach the Branch Chief (Responsible Management Official (RMO
2)), but spoke to the Section Chief (RMO 3) the next day. Complainant met
with RMO 3 in his office at which meeting RMO 3 asked complainant to let
him �take care of this.� At this meeting, RMO1 claimed that Co-worker
A reacts very strongly when anything is said about his wife. Although
the word �nigger� was never used in the verbal confrontation between
complainant and Co-worker A, according to RMO1's affidavit, the term
�nigger� was not a racial slur because �there are white niggers and
black niggers.�
In her appeal, complainant claims this work environment has caused her to
suffer from severe work-related stress. She also states that she has been
diagnosed with high blood pressure brought on by this work environment,
which has caused her to use up her sick leave.
Complainant's complaint was accepted for formal investigation. On
September 8, 1999, the agency issued a final decision (FAD) vacating its
previous acceptance of the complaint and determined that the complaint
should have been dismissed for failure to state a claim pursuant to EEOC
Regulation 1614.107(a). The FAD found that this �one time action by
[complainant's] supervisor did not alter the conditions of her employment,
was not severe and pervasive enough, and did not result in direct,
personal deprivation at the hands of the employer.� The FAD did not
address complainant's allegations with regard to her age or disability.
Complainant filed a timely appeal accompanied by a brief in support,
as well as affidavits and statements from fellow co-workers. One of
the affidavits of record is from Co-worker B, who witnessed the entire
incident between complainant and Co-worker A, and completely supports
complainant's version of events. In addition, Co-worker B described
the workplace as one in which supervisors do not respond to requests for
assistance in dealing with hostile co-workers. Furthermore, he stated
that fellow African Americans are referred to as �y'all people.� The
remaining three affidavits, are from African -American employees who
believe that they have been discriminated against over the years on
the basis of their race with regard to nonpromotions, harassment, and
disparate treatment with regard to the denial of training opportunities.
ANALYSIS AND FINDINGS
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter cited as 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). Where an agency
determines that the allegations raised by an employee do not state a
claim and the employee is not aggrieved, it must dismiss the complaint
pursuant to 29 C.F.R. �1614.107(a). We hold that it was error for the
agency to dismiss complainant's complaint in this matter.
This case rests on the words Co-worker A, as well as the alleged lack
of action on the part of complainant's supervisor and management.
This case does not involve a traditional adverse employment decision,
such as a nonselection, discipline, or a poor performance review. However,
it is well-established that if sufficiently severe or pervasive, the use
of racial epithets or slurs in the workplace may constitute harassment
based on race and violate Title VII.
Complainant may assert a Title VII cause of action if the discriminatory
conduct was so severe or pervasive that it created a hostile work
environment on the basis of her race, color, gender, religion, sex,
national origin or retaliation. See Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993); EEOC Notice No. 915.002 (March 8, 1994),
Enforcement Guidance on Harris v. Forklift
Systems, Inc. at 3, 6; Cobb v. Department of the Treasury, EEOC Request
No. 05970077 (March 13, 1997).
In determining whether or not a hostile environment violative of Title
VII has been created, our regulations require that �...the challenged
conduct must not only be sufficiently severe or pervasive objectively
to offend a reasonable person, but also must be subjectively perceived
as abusive by the charging party.� EEOC Notice No. 915.002 (March 8,
1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 7.
The Supreme Court stated: �Conduct that is not severe or pervasive enough
to create an objectively hostile work environment - an environment
that a reasonable person would find hostile or abusive - is beyond
Title VII's purview.� Harris, 510 U.S. at 22 (1993). Additionally, our
guidelines state that: �In defining the hypothetical reasonable person,
the Commission has emphasized that the reasonable person standard
should consider the victim's perspective and not stereotyped notions
of acceptable behavior.� EEOC Notice No. 915.002 (March 8, 1994),
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 6.
In evaluating the degree to which a work environment is sufficiently
severe or pervasive to constitute a hostile environment, the Commission
has noted that �A 'hostile environment' claim generally requires a
showing of a pattern of offensive conduct.� See EEOC Policy Guidance
on Current Issues of Sexual Harassment, N-915-050, No. 137 (March 19,
1990). The Commission recognizes that a �mere utterance of an ethnic or
racial epithet which engenders offensive feelings in an employee would
not affect the conditions of employment to a sufficiently significant
degree to violate Title VII.� Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986). See also Backo v. United States Postal Service,
EEOC Request No. 05890894 (November 9, 1989). However, a limited
number of highly offensive slurs or derogatory comments may in fact
state a claim or support a finding of discrimination under Title VII.
See, e.g., Yabuki v. Department of the Army, EEOC Request No. 05920778
(June 4, 1993)(single incident of verbal abuse and negative comment
concerning Japanese people sufficient to constitute race and national
origin discrimination); Brooks v. Department of the Navy, EEOC Request
No. 05950484 (June 25, 1996)(three racially derogatory comments over a
two-month period by an individual with a history of making such statements
was sufficient to state a claim); McAllister v. Department of Defense,
EEOC Request No. 05960416 (May 22, 1997)(a supervisor's disparaging and
racist comments to complainant, in conjunction with prior comments by
the supervisor demeaning to other protected classes, was sufficient to
justify an AJ's finding of discrimination).
In light of the nature of the comments made, viewed in context of
the totality of the evidence of the not yet fully developed record,
as well as Commission precedent, we conclude that the complainant's
allegations are sufficient to state a claim and should not have been
dismissed under 29 C.F.R. � 1614.107(a). Accordingly, the agency's final
decision dismissing complainant's complaint for failure to state a claim
is REVERSED. The complaint is hereby REMANDED for further processing
in accordance with the Order below.
ORDER (E0400)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
July 6, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.