01990919
02-14-2000
William H. Schramm, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
William H. Schramm, )
Complainant, )
)
v. ) Appeal No. 01990919
) Agency No. 4-98-4106
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
____________________________________)
DECISION
On November 10, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) dated October 16, 1998,
pertaining to his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq.<1> In his complaint, complainant alleged that
he was subjected to discrimination on the bases of sex (male) and in
reprisal for prior EEO activity when he was subjected to less favorable
treatment than similarly situated co-workers, and was subjected to a
hostile work environment.
The agency dismissed the complaint for failure to state a claim.
Specifically, the agency found that the complaint referred to the
unfairness of management's investigation of sexual harassment claims
against complainant. The agency found that it was legally obligated to
investigate complaints of harassment. Further, the agency found that
the claims were a collateral attack on the complaints raised against
complainant.
On appeal, complainant argues, through his attorney, that he is not
challenging the rights of others to file complaints, but rather his
unfair tour schedule, and his inability, through no fault of his own,
to work with certain co-workers. Complainant attached the affidavits
of four co-workers. These affidavits generally discussed difficulties
working with two co-workers (Person 1 and Person 2). Affidavit-1 stated
that Person 1 spread rumors about complainant being at fault in two
sexual discrimination EEO cases. Complainant denies any fault, and
claims that he has never been found responsible for discrimination
by EEO. Affidavit-1 also stated that Person 1 accused complainant
of being physically intimate with a co-worker. Affidavit-4 discussed
Person 2 grousing about complainant being �out to get her.� This last
affidavit detailed how Person 1 screamed in his and complainant's face
on numerous occasions, accused complainant of sleeping with a co-worker,
and screamed at complainant �you are f---ing her!� Complainant used the
affidavits to illustrate how rumors were spread to cause �dissension�
and resentment toward complainant. Complainant also argues that his
prior complaints were not investigated fully.
In response, the agency argues that complainant's claims regarding the
processing and investigation of prior complaints fails to state a claim.
The agency also contends that the affidavits only show personal disputes
between complainant and various personnel, but do not raise any issues
that need to be investigated. The agency also asserts that several of
the incidents were raised in a prior grievance. The agency provided a
copy of the grievance, which concerned rumors that complainant was to
blame in an EEO case, and a letter of warning.
The record includes a copy of complainant's formal complaint, dated
September 14, 1998, in which complainant alleges harm from the processing
of prior complaints. He also raised incidents stemming from his 1997
grievance, claiming that the agency violated the grievance settlement.
Complainant alleged that he was not allowed to take leave in order to
avoid working with Person 1, and was not granted a permanent shift change.
The complaint also describes how Person 1 screamed at complainant
�you are f---ing her!� and accused him of sleeping with co-workers.
Complainant alleged that Person 1 told him that he could get anyone
fired if she wanted to. Complainant claims that Person 2 told him that
she used rumors against him because she did not trust �guys like that.�
The Counselor's Report, dated May 12, 1998, concerns incidents of a
woman harassing complainant �because of past issues.� In counseling,
complainant requested that the agency take action against the woman for
harassing him.
EEOC Regulations require the dismissal of claims that allege
dissatisfaction with the processing of previously filed complaints.
See 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified at 29
C.F.R. �1614.107(a)(8)). Concerns with complaint processing must
be addressed in the underlying complaint, not via a separate EEO
complaint. Accordingly, to the extent that complainant alleges harm
from the processing or insufficient investigation of prior complaints,
the agency's dismissal is AFFIRMED.
Regarding management's refusal to give complainant leave, this issue
was raised and addressed by the Commission in Schramm v. Department of
Transportation, EEOC Appeal No. 01993962 (Nov. 4, 1999). EEOC Regulations
provide for the dismissal of issues pending or decided by the agency or
Commission in another complaint. See 64 Fed. Reg. 37,644, 37,656 (1999)
(to be codified as 29 C.F.R. �1614.107(a)(1)). Therefore, to the extent
that complainant raised this issue in his formal complaint, the agency's
dismissal is AFFIRMED.
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 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).
To the extent that complainant is alleging dissatisfaction with the
grievance process, complainant is attempting to lodge a collateral
attack against that process. The Commission has held that an employee
cannot use the EEO complaint process to lodge a collateral attack on
another proceeding. See Wills v. Department of Defense , EEOC Request
No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service,
EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States
Postal Service, EEOC Request No. 05930106 (June 25, 1993). The proper
forum for complainant to have raised his challenges to actions which
stem from the grievance process was in the grievance process itself.
Therefore, the agency's dismissal of any incidents concerning the
settlement of his 1997 grievance is AFFIRMED.
Furthermore, to the extent that complainant is challenging the filing of
complaints by co-workers, the Commission has held that the filing of an
EEO complaint by another individual does not constitute an injury to a
term, condition, or privilege of appellant's employment. The processing
of a complaint by an employee, wherein the employee challenges the filing
of an EEO complaint by a coworker or other agency employee, would have
a chilling effect on the filing of EEO complaints by aggrieved persons.
See Blinco v. Department of the Treasury, EEOC Request No. 05940194
(May 26, 1994). Accordingly, the agency's decision to dismiss those
portions of complainant's complaint is AFFIRMED.
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).
In the present case, complainant alleges that Person 1 and Person
2 created a hostile work environment by frequently screaming at
complainant, accusing him of having sexual intercourse with co-workers,
and threatening to have him fired. The Commission finds that complainant
states a cognizable claim of harassment. The frequent and ongoing nature
of the abusive treatment, as well as its severity, creates a hostile
work environment. Accordingly, the agency's dismissal of this portion
of complainant's complaint is REVERSED, and the claim is REMANDED for
further processing.
ORDER
The agency is ORDERED to process the remanded hostile work environment
claim 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 also shall consolidate the remanded claims
with any pending or ongoing investigations from complainant, and must
provide notice to complaint of any consolidation in its acknowledgment
letter. 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 (T1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court WITHIN NINETY (90) CALENDAR
DAYS from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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 14, 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.