Tina Bryant, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionSep 26, 2000
01A03999 (E.E.O.C. Sep. 26, 2000)

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.