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.