01A03999
09-26-2000
Tina Bryant, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Tina Bryant v. U.S. Department of the Navy
01A03999
September 26, 2000
.
Tina Bryant,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A03999
Agency No. DON (MC)00-00264-002
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated April 13, 2000, dismissing her complaint of unlawful
employment discrimination brought pursuant to Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The
Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
In her complaint, complainant claimed that she was subjected to sexual
harassment by a co-worker in reprisal for her naming him in a prior EEO
complaint. The claimed harassment consisted of receiving unsolicited
pornographic materials and subscriptions over the Internet at work and at
home; replies to personal ads which she did not place; and a death threat.
Complainant additionally claimed that after the co-worker was identified,
the agency handled the situation in a manner which embarrassed and
inconvenienced her, whereas the co-worker was not subjected to similar
treatment, and the agency then only administered minimal discipline,
which failed to reflect the seriousness of the conduct. She also claimed
that she continues to feel uncomfortable in the workplace due to the
inadequate discipline received by the co-worker, and the fact that he
remains employed at the same base.
In its final decision, the agency dismissed the complaint for failure
to state a claim, finding that complainant was not harmed in a term,
condition, or privilege of employment by the actions of the agency.
On appeal, complainant argues that she did suffer an actionable harm
as described in her complaint statement, additionally noting that the
agency's actions did nothing to address the fact that the harassment
was motivated by reprisal.
In its response, the agency argues that it is not directly liable for
the conduct of the co-worker, who was not complainant's supervisor,
and offers several legal theories in support of this view. The agency
also maintains that complainant's supervisors took appropriate actions
upon learning of each incident of sexual harassment, such that it is not
vicariously liable for the co-worker's actions. Furthermore, the agency
argues that complainant's claims that the agency handled the affair in
a manner disparaging to her and administered inadequate discipline were
not raised with an EEO Counselor.
The regulation set forth at 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 (April 21, 1994).
In Harris v. Forklift Systems, Inc., 510 U.S. 17,21 (1993), the Supreme
Court found that harassment is actionable, even absent a claim that
an agency's action harmed complainant in a specific term, condition
or privilege of employment, as long as the complainant can otherwise
demonstrate that the conduct was engaged in with the purpose of creating a
hostile work environment, and also that the conduct is sufficiently severe
or pervasive as 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).
In this case, we find that complainant has stated an actionable claim of
harassment and that the agency's dismissal was improper. The co-worker's
purported conduct in sending the pornographic materials, and placing
a personal ad in complainant's name renders complainant an aggrieved
employee. Moreover, we determine that the death threat constitutes a
claim of harassment, given its severity and the fact that it was received
during the course of the claimed on-going harassment by the co-worker.
See Harris, supra.
The agency argues, in essence, that it is not directly liable for the
actions of a non-supervisory co-worker, and that it has avoided vicarious
liability through its defense that it responded appropriately to address
the conduct. However, we determine that this type of analysis goes to
the merits of the case, and is not pertinent in determining whether
complainant has stated a justiciable claim. See Ferrazzoli v. USPS,
EEOC Request No. 05910642 (August 15, 1991).
Furthermore, we reject the agency's argument on appeal that a portion of
complainant's harassment claim, regarding the purported agency failure
to respond to the situation, was not raised with the EEO Counselor.
We find that complainant's claim regarding the agency's actions after the
discovery of the co-worker's identity is part of the instant complaint.
All of the incidents identified by complainant arose in the context
of the same situation, and are part of the same claim of harassment.
Moreover, in reviewing the EEO Counselor report, we note that several of
the attachments are copies of various e-mails and other communications
reflecting complainant's concern regarding the manner in which the
agency was handling the purported harassment, and how she continued
to feel threatened in the workplace. We therefore determine that the
agency's purported failure to respond appropriately was raised during
EEO counseling, contrary to the agency's arguments on appeal.
Finally, we note that complainant is contending that the harassment
and concomitant failure on the part of the agency to properly handle
the harassment is in retaliation for her prior protected activity.
The Commission's policy on retaliation prohibits any adverse treatment
that is based on a retaliatory motive and is reasonably likely to deter
the charging party or others from engaging in a protected activity.
See EEOC Compliance Manual Section 8, �Retaliation� No.915.003 at pp. 8-13
(May 20, 1998). Clearly, the actions identified in the present case
could be reasonably likely to deter complainant from engaging in
protected activity.
Accordingly, we REVERSE the agency's dismissal of the instant complaint,
and REMAND the complaint to the agency for further processing in
accordance with this decision and applicable regulations.
ORDER (E0800)
The agency is ORDERED to process the remanded claims in accordance with
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 (K0800)
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)(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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0800)
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).
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 26, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.