01A04662_r
05-23-2002
Sharon K. Ramsey, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Sharon K. Ramsey v. Department of the Navy
01A04662
May 23, 2002
.
Sharon K. Ramsey,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A04662
Agency No. 00-62204-009
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated May 17, 2000, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The record reflects that complainant pursued the EEO complaint process
through an informal EEO complaint identified as Complaint No. 97-026,
regarding incidents of alleged sexual harassment by an agency employee.
On February 14, 1997, complainant and the agency settled complainant's
complaint. The agreement contained, in pertinent part, the following
provision:
The purpose of this resolution agreement is to set out the terms of
the informal resolution which ensures that [a named agency employee]
will be restricted from entering Sections One and Two of Warehouse 505
so long as [complainant] is employed there. He will not go into this
area to use the telephone, to clock in or out, or for any other reasons.
With management's continued enforcement of the agreement, [complainant]
agrees to withdraw her current complaint of sexual harassment in the
workplace.
On May 7, 1997, complainant alleged breach of the agreement.
Specifically, complainant claimed that the employee cited in the agreement
on or about April 10, 1997 entered Warehouse 405; that the agreement
was subsequently breached on or about April 29, 1997, when the employee
purportedly blocked complainant's access to her vehicle; and again on
or about April 30, 1997, when the employee entered complainant's work
site and climbed into her forklift.
After the agency claimed that remedial steps had been taken relating to
the matters set forth in complainant's breach claim, complainant filed a
formal complaint, on June 24, 1997, alleging that the agency breached the
settlement agreement regarding the actions of the named agency employee,
as discussed above.
On August 15, 1997, the agency issued a decision finding no breach.
On appeal, the Commission determined that the agency cured any breach
of the settlement agreement that had occurred by transferring the named
agency employee to another position and advising him that any future
entry into complainant's work area would result in disciplinary action.
Accordingly, the Commission affirmed the agency's finding of no breach.
Ramsey v. Department of the Navy, EEOC Appeal No. 01976854 (July 7, 1998).
In the instant EEO complaint, filed on November 9, 1999, complainant
alleged that she was subjected to discrimination in reprisal for prior
EEO activity when:
(1) from November 1997 to May 1999, complainant was transferred on
several occasions, not accompanied by formal SF50's;
(2) on August 11, 1999, the employee referenced in the settlement
agreement of February 14, 1997, entered complainant's new workplace,
in violation of that agreement.
(3) on August 11, 1999, complainant's supervisor yelled at her; and
(4) on August 11, 1999, complainant's request for a Union steward was
denied in conjunction with the matter raised in claim (3).
In its final decision, the agency dismissed claim (1) on the grounds that
it was untimely filed. With regard to claim (2), the agency dismissed
this claim pursuant to 29 C.F.R. � 1614.107(a)(1), on the grounds
that it stated the �same/similar� matter that was raised in the breach
claim that was the subject of the Commission decision of July 7, 1998,
discussed above. The agency dismissed claims (3) and (4) for failure
to state a claim.
Claim 1
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a written
complaint with an appropriate agency official within fifteen (15)
calendar days after the date of receipt of the notice of the right to
file a formal complaint. Here, the record in this case indicates that
on April 23, 1999, complainant contacted the EEO office regarding the
matter identified in claim (1). On June 11, 1999, complainant received
a notice of final interview dated May 26, 1999, informing her that she
had fifteen days from that date of its receipt in which to file a formal
complaint. The record further reflects that complainant did not file a
formal complaint within fifteen (15) days of receipt of the notice but,
instead filed the formal complaint on November 9, 1999, wherein claim (1)
was included with the matters addressed in claims (2) - (4). Complainant
has failed to present adequate justification, pursuant to 29 C.F.R. �
1614.604(c) for extending the filing period. The Commission therefore
determines that the agency's decision to dismiss claim (1) was proper.
Claim 2
Upon review, we find that the agency improperly dismissed claim (2).
Complainant clearly alleged during pre-complaint counseling and in
her formal complaint that the agency breached the settlement agreement
of February 14, 1997, when on August 11, 1999, a named agency employee
entered complainant's new workplace. The agency improperly processed the
settlement breach allegation as a new claim of discrimination without
conducting an investigation of a possible breach, in accordance with
29 C.F.R. � 1614.504. Accordingly, the dismissal of claim (2) is
VACATED and the matter is REMANDED to the agency for further processing
in accordance with the Order below.
Claims 3 and 4
In claim (3), the complainant alleged that she was subjected to
discrimination when her supervisor yelled at her to sit down and calm
down. The Commission has held that a remark or comment unaccompanied
by concrete action is not a direct and personal deprivation sufficient
to render an individual aggrieved for the purposes of Title VII. Henry
v. USPS, EEOC Request No. 05940695 (February 9, 1995). Therefore, we find
that the agency properly dismissed claim (3) for failure to state a claim.
Further, the Commission finds that the agency properly dismissed claim
(4) for failure to state a claim. Complainant has not alleged a personal
loss or harm regarding a term, condition or privilege of employment
regarding the matter raised in this claim.
In summary, the agency's decision dismissing claims (1), (3) and (4)
was proper and is hereby AFFIRMED. The agency's decision dismissing
claim (2) is VACATED. Claim (2) is REMANDED to the agency for further
processing in accordance with this decision and the Order stated below.
ORDER
The agency is ORDERED to investigate the issue of whether there has been
a breach of the February 14, 1997 settlement agreement, regarding whether
an agency employee entered complainant's workplace on August 11, 1999.
Thereafter, the agency shall, within thirty (30) calendar days of the date
that this decision becomes final, issue a new final decision addressing
complainant's settlement breach allegation.
A copy of the final agency decision must be submitted to the Compliance
Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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)
(1994 & Supp. IV 1999). 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 (M0701)
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 (T0900)
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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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
May 23, 2002
__________________
Date