Rose P. Simpson, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency) Agency.

Equal Employment Opportunity CommissionFeb 8, 2000
01992899 (E.E.O.C. Feb. 8, 2000)

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.