01a01031
08-30-2000
Richard L. Todd, Complainant, v. Larry H. Summers, Secretary, Department of the Treasury, Agency.
Richard L. Todd v. Department of the Treasury
01A01031
August 30, 2000
.
Richard L. Todd,
Complainant,
v.
Larry H. Summers,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A01031
Agency No. 99-4342
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated October 26, 1999, dismissing his 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.; Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.; and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.<1> In his complaint, complainant alleged that
he was subjected to discrimination on the bases of race (Caucasian),
sex (male), age (date of birth January 5, 1945), mental disability,
physical disability, and in reprisal for prior EEO activity when:
Complainant and another employee were the only ones required to sign a
shuttle log register;
Complainant was not allowed to pick-up passengers at the airport;
Complainant was not allowed to work as acting manager;
Complainant was denied performance awards;
Complainant was denied computer training;
Complainant was denied help in preparing his Individual Development Plan
(IDP);
Complainant was denied a detail at the main building;
Complainant's manager intentionally avoided informing complainant when
overtime was available;
Smoking was allowed in the buildings and in vehicles;
Complainant's manager did not assist with his Office of Workers'
Compensation Program (OWCP) claim;
Complainant was required to stop working the Alternative Work Schedule
(AWS);
Complainant's manager did not provide complainant was insulated
workclothes or safety glasses;
In approximately May 1999, complainant's manager harassed him verbally,
and allowed others to harass him verbally and in writing; and
On June 23-28, 1999, a co-worker put complainant's work on a shelf
instead of in a cart.
The agency dismissed claims (1) - (12) for untimely counselor contact.
Specifically, the agency found that complainant contacted a counselor on
June 24, 1999, but failed to provide dates for the incidents alleged.
Further, the agency notes that it requested that complainant provide
specific dates for his claims, but complainant only stated that some
claims were timely, some were not, but all were part of a continuing
pattern. Concerning continuing violation, the agency found no
interrelatedness between the timely issues, (13) - (14), and the rest
of his claims.
The agency dismissed claims (13) - (14) for failure to state a claim.
With regard to claim (13), the agency found that complainant failed
to show how he was harmed by the verbal harassment. The agency noted
that complainant never explained specifically what occurred that he
considered harassment. Concerning claim (14), the agency found that
complainant failed to show how his work was affected by a co-worker
placing his work on a shelf instead of in a cart.
On appeal, complainant argues that his claims cannot be considered
untimely since they continue to occur, and have not improved.
Complainant asserts that he suffered harm in the form of different
treatment from other employees, and lost money due to lack of overtime.
The record contains a letter from complainant, dated October 11, 1999.
In this letter, complainant explained that his claims �are of a continual
nature.�
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints
of discrimination be brought to the attention of the EEO Counselor
within forty-five (45) days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within forty-five
(45) days of the effective date of the action. EEOC Regulations provide
that the agency or the Commission shall extend the time limits when the
individual shows that he was not notified of the time limits and was not
otherwise aware of them, that he did not know and reasonably should not
have known that the discriminatory matter or personnel action occurred,
that despite due diligence he was prevented by circumstances beyond his
control from contacting the Counselor within the time limits, or for
other reasons considered sufficient by the agency or the Commission.
Complainant failed to provide the dates for claims (1) - (12)
in counseling. When complainant filed his formal complaint, he again
failed to list the incident dates. Then, the agency requested that
complainant identify the dates of the incidents alleged, and complainant
failed to comply. The agency's dismissal stresses complainant's failure
to provide incident dates for claims (1) - (12); on appeal, complainant
yet again failed to provide the incident dates.
In one statement, complainant admitted that several of the claims
were untimely, but contended they were part of a continuing pattern.
Despite repeating such arguments, complainant never provided evidence to
indicate the claims were closely linked in time, involved the same actors,
or any other information useful to continuing violation determinations.
He argues that the claims continue to occur, but provides no incident
dates to support his assertion. Based on complainant's admission that
some of the claims were untimely, and the complete absence of any other
incident date information, the Commission affirms the agency's dismissal
of claims (1) - (12).
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).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find [it]
hostile or abusive:� and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive 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 his October 11, 1999 statement, complainant also addressed claims (13)
and (14). Concerning claim (13), complainant argued that he suffered
continual harassment at the hands of his supervisor, including verbal
harassment, cartoons and notes written on his work and in the break room.
Regarding claim (14), complainant argued that placing work on the shelves
rather than on pallets or carts forced complainant to handle the work
twice, wasted time, and resulted in more work for complainant. Complainant
also contended that his co-workers place his work in the wrong place
with full knowledge of management. Complainant also notes that his
supervisor invariably reprimanded him for having either too much or too
little paper packed in �burn bags.�
When considered together in a light most favorable to complainant, these
matters state a claim. Complainant has alleged a cognizable pattern
of harassment. Therefore, the Commission finds that these claims must
be remanded for further investigation.
CONCLUSION
Accordingly, the agency's dismissal of claims (1) - (12) is AFFIRMED.
The agency's dismissal of claims (13) and (14) is REVERSED, and these
claims are REMANDED for further investigation.
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 (T0400)
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
August 30, 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 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.