01995627_01995820
02-10-2000
Thomas B. Jackson, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Thomas B. Jackson, )
Complainant, )
)
) Appeal Nos. 01995627
v. ) 01995820
) Agency Nos. 200K-0810-990961
Togo D. West, Jr., ) 200K-0810-992479
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
Complainant filed a formal complaint of discrimination on March 11, 1999,
alleging that he was subjected to discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq. on the bases of race (African-American), color (black), sex (male),
and in reprisal for prior EEO activity when on or about February 23,
1999, complainant was issued a site visit report by his Field Manager
which indicated that complainant's subordinates had low morale due
to complainant's management style. Complainant further alleged that
the Field Manager's actions created a hostile work environment by his
assertive effort to undermine African-American team leaders because
others received similar reports.
In a final decision (FAD) dated June 9, 1999, the agency dismissed the
complaint, Agency No. 200K-0180-990961, for failure to state a claim.
Specifically, the agency found that complainant was not aggrieved by
the incident alleged. The agency further found that the site visit
involved an isolated incident without concrete harm, which did not create
a hostile work environment.
Complainant received a copy of the FAD on June 16, 1999, and filed a
timely appeal to this Commission on July 3, 1999, Appeal No. 01995627.<1>
Complainant proffered no arguments in support of his appeal.
Meanwhile, complainant filed a separate formal complaint on June 16,
1999, Agency No. 200K-0810-992479 on the bases of race, color, sex,
and reprisal for prior EEO activity. In this complaint, complainant
alleged that he suffered harm when on or about May 3, 1999, the Field
Manager gave complainant a memorandum implying that complainant showed
favoritism toward an employee on his staff, and indicating that a
�mentoring� assignment might be considered for complainant.
By FAD dated June 29, 1999, the agency dismissed 200K-0810-992479
for failure to state a claim as well. Here, the agency found that
complainant was not aggrieved, and suffered no concrete harm from the
�isolated incident.�
Complainant appealed the June 29, 1999 FAD on July 13, 1999, Appeal
No. 01995820. Accordingly, this appeal also is accepted as timely
pursuant to EEOC Order No. 960, as amended.
The record for 01995627 contains a document entitled, �Administrative
Site Visit Assessment,� dated February 23, 1999. This document has
several derogatory references to complainant's leadership, including
that � . . . results are poor in some key areas;� and �some staff have
limited confidence that current leadership can improve the professional
environment. . . .� The assessment also suggests that a follow-up site
visit be conducted to revisit the perceived problems. The Counselor's
Report, dated March 12, 1999, includes a synopsis of statements from
complainant. Complainant explained therein that he believed the Field
Manager was targeting African-American team leaders for increased scrutiny
and derogatory references or discipline for the same actions taken by
Caucasian team leaders without consequence. Complainant believed that
he was being harassed by the constant monitoring of his worksite.
The record for 01995820 includes a memorandum from the Field Manager to
complainant dated May 3, 1999. In this memo, the Field Manager notes that
complainant's staff believe that there is a �disparity in expectations.�
The memo also states that a �mentoring� program was being considered so
that complainant could follow/learn from a highly successful team leader.
The Counselor's Report, dated June 17, 1999, explains that complainant
believed the memo was threatening and constituted continued harassment.
The Report also indicates that the memo was given to complainant in
response to a follow-up site visit from April 14, 1999.
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, or portion thereof, 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 22, 1994).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that 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. 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
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997).
When considered together, and in a light most favorable to complainant,
the Commission finds that complainant has established a pattern of
harassment sufficient to state a claim. See Cobb v. Department of the
Treasury, supra, (considering several different complaints together
as establishing a pattern of harassment). The increased scrutiny of
complainant over several months by the field manager and documents
critical of complainant's performance indicate more than �isolated�
instances of harassment. Further, the site visit report and memo,
both of which contain statements critical of complainant, state a claim
independent of harassment if they are made a part of complainant's
official personnel file. See Jackson v. Central Intelligence Agency,
EEOC Request No. 05931177 (June 23, 1994) (finding that a personal
improvement plan (PIP) was a preliminary step to a personnel action,
and therefore not actionable, so long as the PIP was not included with
the complainant's official personnel records.)
CONCLUSION
Accordingly, the agency's dismissals in both 01995627 and 01995820 are
REVERSED, and the complaints are REMANDED for a consolidated investigation
on the merits.
ORDER
The agency is ORDERED to 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 consolidate both
complaints, and 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:
February 10, 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.