Sandy S. Burton, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionJul 26, 2000
01a03655 (E.E.O.C. Jul. 26, 2000)

01a03655

07-26-2000

Sandy S. Burton, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


Sandy S. Burton v. Department of Transportation

01A03655

July 26, 2000

.

Sandy S. Burton,

Complainant,

v.

Rodney E. Slater,

Secretary,

Department of Transportation,

Agency.

Appeal No. 01A03655

Agency No. OST-00-006

DECISION

Complainant filed a timely appeal with this Commission from an agency's

decision dismissing her complaint of unlawful employment discrimination

brought under Title VII of the Civil Rights Act of 1964 (Title VII), as

amended, 42 U.S.C. � 2000e et seq.<1> We accept the appeal pursuant to 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).

After unsuccessful EEO counseling, complainant filed a formal complaint

on February 7, 2000, alleging that she was subjected to discrimination

on the bases of race, sex, and reprisal when:

On December 7, 1999, her supervisor treated her in a hostile and demeaning

manner concerning a dispute with two co-workers;

She discovered that a negative comment was reflected on the 1997/98

performance appraisal maintained in her official personnel file, when

her supervisor had previously removed the comment in her presence and

signed it, leading her to believe it had been purged; and,

Her supervisor permitted unauthorized personnel to work with her time

and attendance records in violation of the Privacy Act.

The agency dismissed claim 1 for failure to state a claim. Regarding

claim 2, the agency first dismissed the claim for untimely EEO Counselor

contact by determining that it concerned the �merits�<2> of the appraisal

received in 1998, yet complainant did not contact an EEO Counselor until

December 1999. Alternatively, the agency dismissed claim 2 for addressing

the same matter that was raised in a prior EEO complaint wherein she

alleged that she was entitled to a higher evaluation. Additionally,

the agency dismissed claim 2. Finally, the agency dismissed claim 3

finding that allegations under the Privacy Act do not fall within the

purview of the laws and regulations administered by the Commission.

On appeal, complainant argues that the agency mis-characterized her

claims. Regarding claim 1, she contends that she was claiming harassment

due to a hostile work environment, averring that her supervisor routinely

treated her harshly, and also shunned her and abruptly ended her detail.

Regarding claim 2, complainant argues that she did not discover that the

performance appraisal with the negative comment was in her personnel file

until nearly a year after she had thought it had been purged, thereby

rendering timely her EEO contact. She also claims that the matter

raised in claim 2 is another example of harassment. Regarding claim 3,

complainant again describes the hostile work environment created by her

supervisor regarding her inquiries about improper handling of her time

and attendance records.

In response, the agency argues that complainant did not raise a claim

of harassment in her complaint, and that the single incident in claim

1 is insufficient to state a claim of harassment. Concerning claim 2,

the agency further argues that maintenance of the original appraisal

in the personnel file was simply an administrative error, which was

corrected when discovered, with no harm to complainant. Finally,

the agency again notes that Privacy Act violations are not within the

purview of the Commission.

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 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 is sufficient severe or pervasive to alter the

conditions of complainant's employment. See Harris v. Forklift Systems,

Inc., 510 U.S. 17 (1993).

Although in her complaint, complainant does not specifically state she is

claiming �harassment due to a hostile work environment,� a fair reading

of the record, including review of the EEO Counselor's report reflects

that complainant is claiming that her supervisor's hostile treatment of

her is on-going and pervasive, and has been manifested in many instances,

including her supervisor's hostile demeanor during the December 7, 1999

dispute; the conflict over her performance appraisal; and the handling of

timekeeping documents, which are each fully described in her complaint.

We note also that the EEO Counselor characterized her claim as one of

a hostile work environment created by her supervisor. Accordingly,

we find that the agency should have framed the instant complaint as a

claim of harassment.

When confronted with claims of harassment, the agency cannot ignore the

pattern aspect of the allegations and define the issue in a piecemeal

manner, as it appears to have done here. See Ferguson v. Department

of Justice, EEOC Request No. 05970792 (March 30, 1999) and Smith

v. Department of Transportation, EEOC Request No. 05980268 (May 26, 1999).

Even assuming that the three enumerated claims may not independently

state a claim, the agency is not relieved of the obligation to view

those incidents together as a claim of harassment. Here, the claims

involve the same supervisor and all three incidents occurred within the

same time frame. Moreover, regarding claim 3, we find that complainant

is not claiming a per se violation of the Privacy Act, but rather that

this alleged violation was carried out with the purpose of harassing her

and creating a hostile work environment. Therefore, in considering the

record as a whole, including complainant's appellate statement wherein

she identifies additional incidents of alleged harassment by the same

supervisor, we find that she has stated a claim of harassment based on

a hostile work environment. See Cobb v. Department of the Treasury,

EEOC Request No. 05970077 (March 13, 1997).<3>

Accordingly, we REVERSE the agency's dismissal of the instant complaint

and REMAND the complaint to the agency for further processing consistent

with the ORDER below.

ORDER (E0400)

The agency is ORDERED to process the remanded complaint as a claim of

harassment 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

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:

______________________________

Carlton M. Hadden, Acting Director

Office of Federal Operations

July 26, 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.

2This finding was based on the fact that as a remedy complainant was

requesting that the evaluation itself be changed to �distinguished.�

3In light of this determination, we will not address the agency's

individual grounds and alternative grounds of dismissal of the three

claims.