01a02941
10-20-2000
Robert J. Lippian, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Robert J. Lippian v. Department of Veterans Affairs
01A02941
October 20, 2000
.
Robert J. Lippian,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A02941
Agency No. 991101
DECISION
Robert J. Lippian (complainant) filed a timely appeal with this Commission
from an agency's decision dated February 2, 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 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 and harassment on the bases of
national origin (Polish) and age (48-49 at time of relevant events) when:
(1) on or about January 6, 1999, a local union Safety Officer made
false accusations against him and reported to the Hospital Safety
Officer that he was in a hazardous area without a mask;
(2) on or about January 12, 1999, local union officials, including
the President, the Vice President and the Safety Officer, made false
statements to the Tampa Tribune, with the intention of defaming his
character, embarrassing and humiliating him;
a series of postings and/or construction notices were defaced throughout
the worksite;
local union officials provided no support in the effort to prevent
the harassment he was subjected to based on an investigation into the
accusation that he stole from the agency when he was a supervisor.<2>
The agency dismissed the complaint pursuant to EEOC Regulation 29 C.F.R. �
1614.107(a) (1), for failure to state a claim, noting that complainant
failed to indicate how he suffered any personal loss or harm with regard
to a term, condition or privilege of employment. The agency also argued
that the complaint was moot because no relief would be available if
complainant prevailed. See 29 C.F.R. � 1614.107(a)(5). Specifically, the
agency noted that the harassment of which complainant complained was at
the hands of union officials and that the agency Medical Center director
had no authority to control or limit legitimate union activities.
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 the harassment to which
the complainant has allegedly 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. See Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997).
In the case at hand, complainant has alleged that certain of
his co-workers harassed him due to his age and national origin.
Although one of the individuals named by complainant as a harasser is
not employed by the agency, at least two of the named individuals�the
local union Vice President and a local union Safety Official are
employed by the James A. Haley Medical Center in Tampa, Florida,
just as complainant is. In essence, complainant is alleging that he
was harassed by his co-workers. In support of this allegation, he
lists several incidents, not all of which were mentioned in the FAD.
Along with his claim that his co-workers filed false safety violation
reports and accusations of theft against him, complainant notes in
his formal complaint that his co-workers ridiculed him and questioned
his ability to do his job in front of others, referred to him on one
occasion as a �dumb Pollack,� posted notices throughout the facility
accusing him of being involved in an improper relationship with his boss,
and linking that behavior to accusations of theft on complainant's part,
and accused him of violating additional safety regulations relating to
the disposal of asbestos. Complainant contends that these incidents
stemmed from a discriminatory animus towards his national origin and age.
Although the details surrounding these various incidents are not clear,
considering them together in the light most favorable to complainant,
we find that they are sufficient to state a claim of harassment.
The agency argues that the complaint stems from union activities and thus
is outside the purview of Title VII and the ADEA. We note, however,
that complainant alleged that the harassment stemmed from his national
origin and age. A determination as to whether a discriminatory animus
towards these protected classes motivated the alleged harassers goes to
the merits of the complaint, and is irrelevant to the procedural issue
of whether complainant has stated a justiciable claim under Title VII
or the ADEA. 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).
Finally, the agency improperly determined that complainant's complaint
is moot. EEOC Regulation 29 C.F.R. � 1614.107(a)(5) provides for
the dismissal of a complaint, or portions thereof, when the issues
raised therein are moot. To determine whether the issues raised in
complainant's complaint are moot, the fact finder must ascertain whether
(1) it can be said with assurance that there is no reasonable expectation
that the alleged violation will recur; and (2) interim relief or events
have completely and irrevocably eradicated the effects of the alleged
discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631
(1979); Kuo v. Department of the Navy, EEOC Request No. 05970343 (July
10, 1998). Neither of these requirements are met in the case at hand.
The fact that the agency does not have the authority to limit legitimate
union activity is irrelevant, as complainant did not allege that he was
subjected to legitimate union activity, but rather that his co-workers
subjected him to harassment on the bases of his national origin and age.
Accordingly, after a careful review of the record, including arguments
and events not specifically mentioned in this decision, we find that the
agency's dismissal was improper and hereby REVERSE the FAD and REMAND
the complaint to the agency for further processing consistent 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 20, 2000
__________________
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.
2 Complainant's complaint also describes other incidents of alleged
harassment by these same union officials.