01A02496
05-11-2001
Willie E. Graves, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.
Willie E. Graves v. Department of the Navy
01A02496
May 11, 2001
.
Willie E. Graves,
Complainant,
v.
Robert B. Pirie, Jr.,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A02496
Agency No. DON-00-62793-022
DECISION
Upon review, the Commission finds that the complaint was improperly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1). The record shows
that complainant claimed that he had been discriminated against and
harassed on the bases of race and reprisal when: (a) in a meeting on
July 21, 1999, his supervisor harassed and chastised him by making
statements concerning an e-mail message sent to NAVSEA; (b) his detail
to �unclassified duties� was not extended upon expiration; (c) his
daily work activities were changed by reduction in past authority and
responsibility for workforce refreshment duties after termination of
his detail; (d) he was not assigned to the position to which he had
been tentatively selected for on March 30, 1999; (e) during a July 30,
1999 meeting a captain indicated his intention to send complainant back
to Code 250 after removing him from the detail, and stated that he would
�roll back� complainant's authority and responsibilities and �maybe even
further;� and (f) the Student/Intern Program recruitment authority was
transferred to complainant's immediate supervisor and complainant was
denied necessary resources for this program.
The agency issued a final decision dismissing the complaint for failure
to state a claim. The agency found that a review of the claims failed
to support complainant's claim of harassment. The agency found that
none of the claims showed that complainant had been harmed.
We disagree with the dismissal of the complaint. A review of the issues
raised in claims (b) - (f) persuades the Commission that they concern the
terms, conditions, and privileges of complainant's employment: removal of
his duties, reduction in his daily work activities and responsibilities,
non-assignment to a position to which he had allegedly been previously
selected, removal of his authority, and denial of resources previously
available. We acknowledge that we have consistently held that a remark
or comment unaccompanied by any concrete effect does not render the
complainant aggrieved. Fuller v. USPS, EEOC Request No. 05910324 (May
2, 1991). However, claim (a) does not only raise an alleged remark;
rather, complainant claims that this is one of the incidents of alleged
harassment. 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).
The Commission finds that considering these claims as a whole, in
the light most favorable to complainant, we find that he has stated a
cognizable claim of harassment. See Cervantes v. United States Postal
Service, EEOC Request No. 05930303 (November 12, 1993).
Accordingly, the agency's final decision dismissing the complaint for
failure to state a claim is REVERSED. The complaint is hereby REMANDED
for further processing in accordance with the Order below.
ORDER (E0900)
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 (K0900)
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 (M0900)
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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
May 11, 2001
__________________
Date