01992899
02-08-2000
Rose P. Simpson, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency) Agency.
Rose P. Simpson, )
Complainant, )
)
v. ) Appeal No. 01992899
) Agency No. XL-99-003
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency) )
Agency. )
______________________________)
DECISION
On February 25, 1999, the complainant filed a timely appeal with this
Commission from a final agency decision (FAD) dated January 25, 1999,
pertaining to 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. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> In her complaint,
the complainant alleged that she was subjected to discrimination on the
bases of race (black), sex (female) and age (D.O.B. 12/5/52) when:
in April 1998, she was not considered for promotion to a GS-1102-12 at
DCMDE-GGLA, Trident, Underseas/Fairchild Group, Great Neck, New York;
and
on April 12, 1998, she was not considered for a reassignment to Staten
Island, New York, which,
additionally based on reprisal, further resulted in her being forced
to continue to work in a hostile, intimidating and unhealthy work
environment.
The agency dismissed the complaint pursuant to 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.107(a)(1)), for failure to state a claim.<2> The record shows that
the complainant was not considered for a reassignment to Staten Island
because the reassignments involved non-competitive positions under
the expanded DOD Voluntary Separation Incentive Pay (VSIP) program (a
program which allows other employees in different locations to retire or
resign which in turn provides placement opportunities for the potential
separatees) and that no job opportunity announcement existed for those
positions. Specifically, the record contains a letter dated July 21,
1998, to the complainant from the Director of Human Resources, which
states that the VSIP program only allows individuals with reduction
in force (RIF) separation notices to participate. We note that the
complainant did not contend that she had ever received a RIF separation
notice.
In its FAD, the agency stated that the complainant's asserted claim
of discrimination in that she was not considered for the Great Neck
GS-12 position involved a personnel action that was not directed at
her and therefore, she incurred no negative impact to her position.
The record shows that the promotion which occurred in Great Neck was in
accordance with Defense Logistics Agency Regulations (DLAR). The DLAR
requires that before a selection can be made under competitive promotion
procedures, priority consideration must be given to current employees
who are receiving pay or grade retention because they were involuntarily
placed in a lower grade position for reasons such as a RIF.
As to claim (C), the agency stated that since the complainant had been
reassigned to a new work area under a new supervisor, she had received
the relief she had requested.
On appeal, the complainant states that she disagrees with the agency
decision because this is the second time that she was denied an
advancement opportunity in that office while positions were created
to accommodate whites. She also contends that the reassignment she
received was in name only. She states that she is still forced to work
with the �individuals� who are friendly with or married to the employees
responsible for perpetrating the discrimination against her. Moreover,
she previously stated that she believed that these �individuals� continued
to harass and interfere with the performance of her daily activities,
creating a hostile work environment.
In response, the agency contends that the GS-12 Great Neck position
was filled by an employee who had previously suffered a RIF demotion.
The employee had been a GS-12 since 1989 while the complainant had never
held a GS-12 position, nor had she suffered a RIF demotion. Additionally,
the agency asserted that the complainant's claim of reprisal and hostile
work environment must fail because the facts which she alleged to support
this claim occurred over a three day period in which she did not name
any agency management officials. Moreover, the agency argued, even if
the events on those three days did occur, they do not support a claim of
harassment nor do they support a pervasively hostile environment claim.
Moreover, given that the complainant did not allege that any of the
named employees knew of her previous EEO activity, no claim of reprisal
can be supported.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in relevant part,
that an agency shall dismiss a complaint, or portion thereof, 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. 64 Fed. Reg. 37,644,
37655-56, (1999) (to be codified and hereinafter referred to as 29
C.F.R. � 1614.103); 29 C.F.R. � 1614.106(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).
Both the Staten Island reassignments and the GS-12, Great Neck promotion
in the complainant's claims, were actions the agency properly took
pursuant to agency policy and regulations. The complainant does not
contend that she had received a RIF notice, therefore she was ineligible
for the VSIP program used by the agency in reassigning two other
individuals to the Staten Island facility. Moreover, the complainant
does not contend that she ever held a GS-12 position nor that she is
currently in a RIF status with pay and grade retention. Therefore,
pursuant to the DLAR, the agency properly gave priority consideration
to promoting the employee who was in a RIF status and had held a GS-12
position prior to the RIF.
Accordingly, we find that the agency properly dismissed claims (A) and (B)
of the complainant's complaint for failure to state a claim. However,
a fair reading of complainant's complaint is that she was subjected to
a hostile work environment and harassment because of her race, sex, age
and in reprisal for prior EEO activity. Specifically, she stated that
co-workers were, with management's approval, harassing and interfering
with the performance of her daily activities in reprisal for her previous
EEO activity involving management. We find that the complainant has
stated a claim under EEOC regulations and that the agency improperly
dismissed the complainant's claim of harassment in her complaint.
Commission records show that the complainant currently has a complaint
of hostile work environment and harassment back before the agency.
See Simpson v. Department of Defense, EEOC Appeal No. 01985264
(September 23, 1999). We remind the agency of its responsibility to
consider the �pattern aspect� of the complainant's claims of harassment in
her complaints. See Meaney v. Department of the Treasury, EEOC Request
No. 05940169 (November 3, 1994).
Accordingly, the agency's dismissal of claims (A) and (B) of the
complainant's complaint is AFFIRMED. The agency's dismissal of claim
(C) is VACATED and REMANDED for further processing in accordance with
this decision and the applicable regulations.
ORDER (E1199)
The agency is ORDERED to consolidate and process the remanded claim of
harassment in accordance with 64 Fed. Reg. 37,644, 37,656-57 (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 (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q1199)
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 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:
February 8, 2000
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ __________________________
1 On 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.
2 We note that in its FAD, the agency misstated the programs it used to
dismiss the reassignments and the promotion claims of the complainant's
complaint. In this decision, we refer to the record for the correct
program used in each of these actions.