Sheila L. Bates, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJan 19, 2000
01990952 (E.E.O.C. Jan. 19, 2000)

01990952

01-19-2000

Sheila L. Bates, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Sheila L. Bates v. Department of Veterans Affairs

01990952

January 19, 2000

Sheila L. Bates, )

Complainant, )

)

v. ) Appeal No. 01990952

) Agency No. 98-0516

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

On November 10, 1998, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) received by her on

October 19, 1998, 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.<1> In her complaint, complainant

alleged that she was subjected to discrimination on the basis of sex

(female) when:

On October 7, 1997, while carrying out duties as a service secretary,

complainant was involved in an incident with the Vice President

of the union local (VP), who was visiting complainant's service in

his official capacity. Complainant believes she was harassed and

intimidated by the VP; and

In a memo dated October 7, 1997, complainant brought the VP's conduct

to the attention of management. Complainant received no assurance

that the threats would not occur again. Management's failure to act

created a hostile work environment.

The agency dismissed the complaint for failure to state a claim.

Specifically, the agency found that complainant alleged harm from isolated

verbal comments, which did not create a hostile work environment.

On appeal, complainant argues that she suffered from a hostile work

environment from the VP's actions, management's inaction, and as a

result of her filing the present complaint. Complainant argues that her

co-workers resented her after she filed the complaint. She claims that

they blocked her way when she was walking, intentionally bumped into

her, stopped speaking to her, and were very hostile and aggressive over

the phone when complainant was attempting to perform her work duties.

Complainant also alleges that after she filed, the VP would stop in front

of her office door, open the door, stare at complainant for a few minutes,

and then walk away.

Complainant states that she filed a second complaint on November 17, 1998,

alleging reprisal for the first complaint, which she claims the agency

coerced her into dropping when a friend of her supervisor stated that

he would not allow her complaint to go any further. Complainant also

claims that she was accused by her supervisor of performing duties that

were outside of her authority (assigning parking spaces). Complainant

states that she arranged a meeting with the Acting Associate Director to

discuss the harassment from her supervisor, but that the Acting Director

only suggested that complainant apply for a change of tour. According to

complainant, her supervisor then reprimanded her for arranging the meeting

without using the proper chain-of-command. Complainant states that

she has received a change-of-tour from Montgomery to Tuskegee, Alabama,

and also claims that other incidents have occurred, but that she does

not wish to describe them for fear of having the facts used against her.

The record includes a copy of the Counselor's Report for the present

complaint, dated January 29, 1998. The report includes a statement

from a co-worker, explaining that complainant and the VP were in

an argument over whether the VP must appeal grievances in writing.

When the co-worker offered to look through the bargaining agreement,

according to the co-worker, complainant said that it would not matter,

because VP would not listen to reason. The co-worker also stated that

the VP then ranted about complainant's comments, pointed his finger in

her face, and shouted "I've got something for you."

Volume 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 (Apr. 22, 1994).

In determining whether a harassment complaint states a claim in cases

where a complainant has not alleged disparate treatment regarding a

specific term, condition, or privilege of employment, the Commission

has repeatedly examined whether a complainant's harassment claims,

when considered together and assumed to be true, are sufficient to

state a hostile or abusive work environment claim. See Estate of

Routson v. National Aeronautics and Space Administration, EEOC Request

No. 05970388 (Feb. 26, 1999).

Consistent with the Commission's policy and practice of determining

whether a complainant's harassment claims are sufficient to state a

hostile or abusive work environment claim, the Commission has repeatedly

found that claims of a few isolated incidents of alleged harassment

usually are not sufficient to state a harassment claim. See Phillips

v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,

1996); Banks v. Health and Human Services, EEOC Request No. 05940481

(Feb. 16, 1995). Moreover, the Commission has repeatedly found that

remarks or comments unaccompanied by a concrete agency action usually are

not a direct and personal deprivation sufficient to render an individual

aggrieved for the purposes of Title VII. See Backo v. United States

Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United

States Postal Service, EEOC Request No.05940695 (Feb. 9, 1995).

In determining whether an objectively hostile or abusive work environment

existed, the trier of fact should consider whether a reasonable

person in the complainant's circumstances would have found the alleged

behavior to be hostile or abusive. Even if harassing conduct produces

no tangible effects, such as psychological injury, a complainant may

assert a Title VII cause of action if the discriminatory conduct was

so severe or pervasive that it created a work environment abusive to

employees because of their race, gender, religion, or national origin.

Rideout v. Department of the Army, EEOC Request No. 01933866 (Nov. 22,

1995)(citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993))

req. for recons. den. EEOC Request No. 05970995 (May 20, 1999). Also,

the trier of fact must consider all of the circumstances, including the

following: the frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an employee's

work performance. Harris, 510 U.S. at 23.

In the present case, complainant raises numerous incidents of harassing

treatment -- staring from the VP, altercations with co-workers, pressure

to drop her EEO complaints, a transfer to a different facility, and

others that she was too afraid to mention on appeal. When all of the

incidents are considered together, complainant clearly raised a pattern of

harassment adequate to create a hostile work environment. Complainant

has alleged more than a few isolated incidents of discrimination.

Accordingly, the agency's dismissal is REVERSED and her complaint is

REMANDED for further processing in accordance with the Order below.

ORDER

The agency is ORDERED to take the following actions:

Within fifteen (15) calendar days of the date this decision becomes

final, notify complainant of the opportunity to amend her complaint to

include all the claims of alleged harassment which she would like to

pursue through her EEO complaint in accordance with 64 Fed. Reg. 37,

644, 37, 656 (1999)(to be codified and hereinafter referred to as 29

C.F.R. � 1614.106(d)). A copy of the agency's notice must be sent to

the Compliance officer as referenced below;

Process the remanded claims 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 an

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 (R1199)

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:

January 19, 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:

_______________ __________________________

Date Equal Employment Assistant

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.