01a05583
09-28-2000
Sanford Pass, Complainant, v. Norman Y. Mineta, Secretary, Department of Commerce, Agency.
Sanford Pass v. Department of Commerce
01A05583
September 28, 2000
.
Sanford Pass,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A05583
Agency No. 00-63-02145D
DECISION
The instant matter is being processed pursuant to a Memorandum of
Understanding (MOU) entered into by the agency, the Bureau of the Census,
and the United States Equal Employment Opportunity Commission.<1> The
MOU was entered into in order to process complaints arising from the
2000 Decennial Census more effectively and efficiently.
Pursuant to the MOU, individuals file their complaints directly with
the Commission. The Commission, through its Washington, D.C. Field
Office, then conducts an early assessment of complaints and neutral
evaluation of cases. The Washington, D.C. Field Office of the Commission
establishes a record of the complaint by obtaining an affidavit from the
complainant and by contacting an agency official to obtain the necessary
information on the complaint. Based on the record established by the
Washington, D.C. Field Office, the Washington, D.C. Field Office will:
(1) notify the agency that the individual has elected not to file a
formal complaint; (2) issue a decision dismissing the complaint and
notify the complainant of his or her right to appeal the decision to
the Office of Federal Operations; (3) conduct settlement negotiations;
or (4) notify the complainant that the complaint has been accepted and
forward the complaint to the agency for further investigation.
The Commission's Washington, D.C. Field Office dismissed the instant
complaint for failure to state a claim. According to the Field Office,
complainant claimed harm on the bases of sex (male) when he was harassed,
and retaliated against for complaining of harassment. The Field Office
found evidence that the Local Census Manager made offensive statements
and threatened complainant when he complained of these statements,
but noted that the agency took action against the Local Census Manager,
and never carried out any retaliatory threats. Based on these findings,
the Field Office determined that the claim did not involve any concrete
action, and was not severe or pervasive enough to state a claim.
On appeal, complainant argues that the Local Census Manager repeatedly
expressed bias against men, and threatened constant surveillance
and/or termination of complainant when he requested that the manager
stop using such language. In an affidavit, complainant explained that
the manager often referred to men as �egos full of testosterone,� and
stated that �whenever there is a problem it takes a woman to solve it.�
When complainant had problems with a subordinate employee and wished to
discipline him, the manager made such comments to undermine complainant.
Complainant explains that he wrote a memo to the manager requesting
that she cease her stereotyping of men; in response, the manager issued
complainant a �282 Form� noting that complainant would be terminated
if he made another mistake, informed complainant that if he spoke he
would be fired, and threatened to �activate� the �stacks and stacks� of
complaints already filed against complainant. According to complainant,
the manager later stopped complainant in front of coworkers and told
him, �Tomorrow might be your last day working here.� She also sent a
memorandum denying any bias against males, and informing complainant
that soon he would be terminated.
Complainant raised these issues with the Local Census Manager's direct
supervisor. The supervisor reprimanded the manager, and requested that
she apologize to complainant. Complainant indicates that the manager
apologized by saying �something to the effect of �I'm sorry if anything
I said made you question your manhood.'� Complainant requested that
the agency purge all derogatory information from his personnel file.
After complainant was promoted, the manager took issue with the way he
described his new position to subordinate employees.
EEOC Regulations require the dismissal of complaints that fail to
state a claim. See 29 C.F.R. � 1614.107(a)(1). To state a claim,
complainant must allege a present harm to a term, condition, or privilege
of employment based on race, color, sex, religion, national origin,
age, disability, or prior protected activity. See Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Harassment is actionable if it is sufficiently severe or pervasive
to alter the conditions of the complainant's employment. See Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (citing Meritor
Savings Bank v. Vinson, 477 U.S. 57, 67 (1986)). According to the
Supreme Court, 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; a claim
of harassment is actionable only if, allegedly, the harassment to which
the complainant has been subjected was sufficiently severe or pervasive
to alter the conditions of the complainant's employment.
Complainant claims to have suffered from a pattern of abuse including
threats of termination and attempt to undermine his authority. When all
of the incidents are considered together in a light most favorable to
complainant, they state a claim of harassment. See Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
CONCLUSION
Accordingly, the dismissal is REVERSED, and the claims are REMANDED for
further processing.
ORDER
As provided in the Memorandum of Understanding, the Washington Field
Office shall conduct settlement negotiations and, if unsuccessful,
forward the file to the agency for investigation. The agency shall
complete its investigation within 180 days upon receipt of the file.
At the conclusion of the investigation, the agency must forward a
copy of the investigation to complainant, and provide her rights to a
final agency decision, or a hearing with an EEOC Administrative Judge.
The agency must provide the Compliance Officer with a copy of its cover
letter sending the investigation and notice of rights to complainant
as indicated herein. If the complaint has been settled or otherwise
closed within the 180 day time frame, then the agency must provide the
Compliance Officer with notice of such.
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
September 28, 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 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.