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.