01a02630
07-19-2000
Tim Johnson, Complainant, v. William S. Cohen, Secretary, Department of Defense, Agency.
Tim Johnson v. Department of Defense
01A02630
July 19, 2000
Tim Johnson, )
Complainant, )
)
v. ) Appeal No. 01A02630
) Agency No. CO-OOOOJ-00-007
William S. Cohen, )
Secretary, )
Department of Defense, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated January 4, 2000, dismissing his 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.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified at 29 C.F.R. � 1614.405).
Complainant contacted the EEO office regarding claims of discrimination.
When informal efforts to resolve complainant's concerns failed,
complainant filed a formal complaint. In his complaint, complainant
alleged that he was discriminated against on the bases of race (black)
and sex (male) when:
his work was being excessively monitored over the LAN network system
by the lead(s);
on August 31, 1999, he discovered a copy of his Quarterly Performance
Discussion on a copier machine where others could view it publicly; and
on September 14, 1999, he received his Quarterly Performance
Discussion, which does not fairly reflect the quality of his work and
is discriminatory.
The agency issued a final decision dismissing the complaint, pursuant
to 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(1)), for failure to state a claim.
Specifically, the agency stated that complainant had failed to establish
that he had suffered any harm with regard to a term, condition, or
privilege of employment. Further, the agency dismissed claim (3), in
accordance with 29 C.F.R. � 1614.107(a)(5), stating that the quarterly
performance discussion was a preliminary step that is not actionable.
On review of the record, we find that the agency improperly dismissed
complainant's complaint for failure to state a claim. We find that
complainant states an actionable claim, alleging that he was subjected
to a pattern of harassment that affected a term, condition, or privilege
of employment.
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.
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).
In the case at hand, complainant alleged that he was being targeted and
excessively monitored on the computer network system by one or both of his
leads. While complainant acknowledged that supervisors can monitor their
employees, he alleged that access to his computer system was improperly
passed on from his supervisor to his leads for discriminatory targeting
and monitoring. Complaint further alleged that he received a negative
quarterly performance discussion that unfairly reflected his work and
omitted important contract work he had completed. He also alleged that
a copy of the performance discussion was deliberately left on the copier
in order to discredit and harass him. The Commission finds that, taken
together, these allegations state an actionable claim of harassment on
the bases of race and sex.
The Commission also notes that the agency's dismissal of claim (3), on the
grounds that a quarterly performance discussion is a preliminary step and
therefore does not state a claim, was improper. Our Management Directive
specifically provides an exception to the dismissal of allegations of
a proposed action or a preliminary step when a complainant alleges
that a proposed action or preliminary step was part of a pattern of
harassing the individual for a prohibited reason. See Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
5-22 (as revised November 9, 1999). See also Butler v. Department of
Labor, EEOC Request No. 05891016 (December 1, 1989); Smith v. Federal
Deposit Insurance Corporation, EEOC Appeal No. 01950607 (May 1, 1995).
Because the quarterly performance discussion was part of an allegation
of unlawful harassment on the bases of race and sex, we find that the
agency improperly dismissed claim (3).<2>
Accordingly, the agency's decision to dismiss the complaint is REVERSED
and the complaint is REMANDED to the agency for further processing in
accordance with this decision and the Order below.
ORDER (E0400)
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 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 a
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 (M0300)
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
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
July 19, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.
2Moreover, as the Quarterly Performance Discussion was reduced to
writing and appears to be maintained in agency files, its existence
would appear to render complainant aggrieved even in the absence of
his harassment allegations. See McAlhaney v. U.S. Postal Service,
EEOC Request No. 05940949 (July 7, 1995).