Tommie Savage, Complainant,v.Pete Geren, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionAug 27, 2009
0120091861 (E.E.O.C. Aug. 27, 2009)

0120091861

08-27-2009

Tommie Savage, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.


Tommie Savage,

Complainant,

v.

Pete Geren,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120091861

Agency No. ARCEHECSA08AUG04607

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated March 9, 2009, dismissing her 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. In her

complaint, complainant alleged that she was subjected to discrimination

and harassment on the bases of race (African-American), sex (female),

and reprisal for prior protected EEO activity. In support of her claim

of harassment, complainant alleged that the following events occurred:

a. On July 28, 2008, complainant alleged that a fellow employee (E1)

sent complainant an "attacking" email along with her supervisor, several

employees, and government contractors. The email accused complainant of

causing stress and additional work for the Contracting office because

she returned documents due to errors.

b. On or about July 23, 2008, complainant alleged that she discussed

her concerns with her supervisor (S1) about the demand the Contracting

office placed on her.

c. On or about July 21, 2008, complainant alleged that during a

meeting, she wanted to clarify a comment; however, another Supervisor

(S2) stopped her but he allowed another employee to express her opinions.

d. On or about July 21, 2008, complainant alleged that she learned

that the former acting Director of Contracting, issued guidance for

the Small Business office to the workforce. Complainant informed her

supervisor that the small business guidance was distributed without her

being copied on the email.

e. On or about July 2, 2008, complainant alleged that she was left to

defend herself because no intervention was made on her behalf or support

from her chain of command regarding an email received from the Project

Manager. The Project Manager took exception to complainant forwarding

him information on Small Businesses and included other individuals on

the email.

f On or about June 26, 2008, complainant alleged the Directorate

of Contract personnel held a meeting on June 6, 2008, regarding the DD

2579 process on task orders with the Commander, without Small Business

representation. Complainant further alleged that the Commander decided

that her office (SM) would no longer complete the DD 2579 process on

task orders after being advised by the acting Director of Contracting.

g. On May 12, 2008, complainant alleged that a new employee was hired

in her office. Complainant alleged prior to the new employee coming on

board she received no recognition from S2 for running the office alone

for approximately five months.

h. On or about April 2, 2008, complainant alleged that S2 instructed

her to take him off of her voicemail as an alternate point of contact.

i. On or about April 2008, complainant alleged that during an

interview for a candidate to replace the Small Business Specialist

position, S2 made derogatory comments such as "nappy & greasy hair,"

and referenced her as being at the "bottom of the totem pole."

j. On or about March 27 2008, complainant alleged that the

Contracting Officer, misplaced her personnel folder in error. Although

the file was found, complainant alleged that "[she was] made to feel that

[she was] blowing the incident out of proportion."

k. On or about March 2008, complainant alleged that S2 originally

denied her request to attend the Society of American Military Engineers,

SAME conference. However, after he approved it, this caused a delay

because she was required to prepare a small business report. Complainant

did not receive information needed from the Contracting office, which

delayed her report and caused her to leave the SAME conference early

and work overtime at night to complete the report.

l. In February 2008, complainant alleged that when her

grandmother passed away, no one from her chain of command showed any

sympathy/support.

m. In February 2008, complainant alleged that during a conversation

with S2, he made comments that were "disgraceful" regarding her ancestors

and their slave masters. S2 also allegedly asked if complainant's

grandmother ever told her if they had any "good slave masters."

n. In February 2008, complainant alleged that she was not included in

the information that was distributed regarding the Acquisition Stand-Down,

although she is in the mandatory job series to participate as a presenter.

Complainant further alleged that S2 did not rectify this until she

obtained the information.

o. On or about January/February 2008, complainant alleged that former

Director of Contracting (DOC) and the Directorate of Contracting employee

(E2) were holding meetings concerning small business without complainant,

S2, or the Small Business Specialist.

p. On December 14, 2007, complainant alleged that the Small Business

office hosted a forum. Although complainant was the co-coordinator of

the event, she did not receive an award for hosting the forum; however

her assistant received an award.

q. On about 14 December 2007, complainant alleged that S2 suggested

that rather than take leave due to the death of her husband's family

member "it would be in the best interest of your career to stay for

the Forum." Complainant alleged that she lost annual leave because she

was not allowed to take time off work.

r. On or about December 2007, complainant alleged that S2 stated that

he was going to add another objective in her NSPS rating. Complainant

felt that the additional factor could impact her rating for 2008 cycle.

s. In November 2007, while talking with another employee, the

employee's supervisor was walking down the hall and the employee stated

"I'm dead, I'm dead" which made complainant feel shunned at work.

Complainant alleged that many employees were afraid to talk to her

because they saw how management was treating her and were afraid they

would also suffer by associating with complainant.

t. Complainant alleged (no specific dates provided) that S2

constantly tells complainant that he was responsible for persuading the

Commander to settle her EEO complaint that was settled in October 2007.

This allegedly made complainant feel indebted to him.

u. Complainant alleged (no specific dates given) that S2 had

Executive Office administrative employees keep tabs on complainant.

Complainant has been accused of being late to meetings or not present

at all while others casually walk into meetings but were not called out.

v. On January 27, 2008, complainant alleged a former employee (E3)

"counseled" complainant regarding complainant speaking harshly to a

student. E3 was not complainant's supervisor nor in her chain of command.

w. In January 2008, complainant alleged that S2 informed complainant

that she would not receive a student hire to assist while pending the

recruitment of a permanent employee.

x. On or about April 28, 2008, complainant alleged that the

Directorate of Contract personnel solicited complainant's input regarding

a matter/incident where she was the previous contracting officer (KO);

this matter was a major source involved in your prior EEO claim. However,

when complainant informed S2 of the incident, rather than addressing

complainant's "comfort level," she was told that it was "more appropriate

for him to address whether it was part of your job duties."

y. Complainant alleged that on October 22, 2007, S2 placed demands on

complainant that were not placed of her predecessors, two white females.

Complainant further alleged that S2 constantly told her that he "stuck

his neck out for [her]" and "went out on a limb for [her]" when he talked

the Commander into settling her initial EEO complaint.

The agency dismissed claims finding that complainant failed to state

a claim pursuant to 29 C.F.R. � 1614.107(a)(1). Further, the agency

dismissed claims (g) through (y) pursuant to 29 C.F.R. � 1614.107(a)(2)

for untimely EEO contact.

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 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). Upon review of the claim of harassment as a whole, we find

that the claim is sufficient to state a claim.

Further, the agency dismissed claims (g) through (y) pursuant to 29

C.F.R. � 1614.107(a)(2) for untimely EEO contact. The Supreme Court

has held that a complainant alleging a hostile work environment will not

be time barred if all acts constituting the claim are part of the same

unlawful practice and at least one act falls within the filing period.

See National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10,

2002). The Court further held, however, that "discrete discriminatory

acts are not actionable if time barred, even when they are related to

acts alleged in timely filed charges." Id. Finally, the Court held

that such untimely discrete acts may be used as background evidence in

support of a timely claim. Id. Upon review, we find that the events

alleged by complainant as support to for her claim of harassment.

As such, we conclude that the dismissal of claims (g) through (y) was

improperly dismissed.

Accordingly, upon review, we find that the agency's dismissal of the

complaint was inappropriate. As such, the agency's final decision

is reversed and the complaint is remanded for further processing in

accordance with the order below.

ORDER (E0408)

The agency is ordered to process the remanded claim of harassment 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 (K1208)

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 77960, Washington,

DC 20013. 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) (1994 & Supp. IV 1999).

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 (M1208)

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 77960,

Washington, DC 20013. 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

August 27, 2009

__________________

Date

2

0120091861

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

7

0120091861