01A11137_r
08-26-2002
_________________, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
_________________ v. Department of the Treasury
01A11137
August 26, 2002
.
_________________,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A11137
Agency No. 00-4288
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision, issued on November 17, 2000, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the
appeal in accordance with 29 C.F.R. � 1614.405.
On August 4, 2000, complainant filed a formal complaint claiming that
she was discriminated against on the bases of race, religion, sex,
age and in reprisal for prior protected activity. The agency framed
the claims as follows:<1>
(a) on July 18, 2000, complainant received a letter of counseling;
(b) on July 21, 2000, complainant's manager caller her "a stupid
Jewish b----�;
(c) complainant's manager would not allow her to combine her lunch and
breaks in order to utilize the fitness center;
(d) complainant's manager accused her of not being sick when she called
in sick on June 30, 2000, and July 3, 2000; and
(e) on July 13, 2000, complainant's manager issued her a caseload
review memorandum.
The agency issued a decision on August 16, 2000, dismissing claims (b) -
(e) for failure to state a claim. Specifically, the agency determined
that with respect to claim (b), a lone critical remark does not rise
to the level of direct harm. Regarding claims (c) and (d), the agency
reasoned that complainant did not suffer any adverse consequences as a
result of the manager's comments. Further, the agency noted that although
complainant's manager told her that she could not combine lunch and
breaks, he thereafter allowed her to do so. Similarly, the agency found
that while the manager may have accused complainant of not being sick,
she nevertheless was granted the requested sick leave. Regarding claim
(e), the agency noted that criticism of a work product, without more, does
not state a cognizable claim. Claim (a) was accepted for investigation.
According to the agency, on August 30, 2000 complainant wrote to the
agency requesting to amend her complaint. The agency stated that
complainant wished to add the following claims:
(f) on August 28, 2000, complainant's manager told her that he was
going to place her on Absence Without Leave (AWOL);
(g) complainant's manager denied her the right to claim, as a tax
write-off, a class taken after receiving the approval of the Human
Resources Investment Fund (HRIF) committee; and
(h) complainant's manager called her a "f�ing Jewish b-----" when he
told her he would not approve her request to claim a class she was taking
as a tax write-off.
The agency concluded that the additional claims were like or related to
the previously raised claims, and therefore an amendment was appropriate.
On November 17, 2000, the agency issued another decision dismissing the
complaint in its entirety. Claim (a), which was originally accepted,
was dismissed on the grounds of mootness. The agency determined that,
even assuming that complainant was previously "aggrieved" by the July 18,
2000 letter of counseling, the matter was rendered moot by complainant's
subsequent retirement. The agency noted that as a result of her
retirement, complainant's Employee Performance Folder, which contained
the letter of counseling, was to be destroyed. The agency also contended
that "management has removed and destroyed the counseling memorandum."
The dismissal of claims (b) - (e), issued on August 16, 2000, was
incorporated by reference. The agency dismissed claims (f) and (h)
for failure to state a claim. According to the agency, regarding claim
(f), complainant explained to the EEO Specialist that she was not actually
placed on AWOL and her manager states he did not place her on such status.
In claim (h), the agency noted that remarks or comments unaccompanied by
concrete action are not sufficient to render one an "aggrieved" employee.
Finally, claim (g) was also dismissed for failure to state a claim, as
well as for mootness. The agency explained that while her manager did
not initially sign off on the necessary form, he later did so. Moreover,
complainant signed an agreement on July 17, 2000, agreeing to reimburse
the agency for tuition if she voluntarily left the agency before the
required period of service was completed. By entering such agreement,
the agency reasoned that the manager's signature was rendered meaningless.
In addition, complainant's retirement and agreement to repay the tuition
rendered the matter moot.
Thereafter, complainant filed the instant appeal.
On appeal, complainant argues that her supervisor has called her a "
stupid f-----g Jewish b�-" on more than three occasions. Further, she
asserts that she was "let go" by the agency because of her supervisor's
comments and treatment. Finally, complainant requests that she be
reinstated.
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).
Based on a review of the record, the Commission finds that the agency
improperly fragmented and dismissed the claims, treating the eight
incidents in a piecemeal manner and ignoring the "pattern aspect"
of complainant's claim. See Meaney v. Department of the Treasury,
EEOC Request No. 05940169 (November 3, 1994); Ferguson v. Department of
Justice, EEOC Request No. 05970792 (March 20, 1999). We find that a fair
reading of the complaint reflects that complainant has raised a single,
actionable, claim of harassment, as evidenced by all the incidents set
forth in her complaint. Consequently, the dismissal of claims (b) -
(h) for failure to state a claim was improper.
Furthermore, we construe complainant's appeal statement, that her
employment with the agency ended due to the treatment she received by
her supervisor, to be a claim of constructive discharge. She believes
that the claimed harassment, on the bases of race, religion, sex, age and
in reprisal for prior protected activity culminated in her leaving the
agency. Because the record does not indicate that complainant received
EEO counseling on this matter, we instruct the agency to provide her
with EEO counseling regarding the constructive discharge claim, as set
forth in the Order below.
Finally, we also find that the agency improperly dismissed claims (a)
and (g) as moot, especially in light of complainant's claim on appeal
that her retirement was tantamount to a constructive discharge and her
request for reinstatement. To determine whether the issues raised in
complainant's complaint are moot, the factfinder must ascertain whether
(1) it can be said with assurance that there is no reasonable expectation
that the alleged violation will recur; and (2) interim relief or events
have completely and irrevocably eradicated the effects of the alleged
discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631
(1979); Kuo v. Department of the Navy, EEOC Request No. 05970343 (July
10, 1998). When such circumstances exist, no relief is available and
no need for a determination of the rights of the parties is presented.
Based on the Commission's reading of the complaint, we do not find that
these elements have been met.
Accordingly, the agency's decision to dismiss complainant's complaint
was improper, and is hereby REVERSED. The complaint is REMANDED to the
agency for further processing in accordance with this decision and the
Order below.
ORDER
The agency is ORDERED to take the following actions:
(1) Within thirty (30) calendar days of the date of this decision, the
agency shall contact complainant and notify her that it will provide EEO
counseling regarding her constructive discharge claim. A copy of the
agency's letter to complainant informing her that EEO counseling will
be provided regarding the constructive discharge claim must be sent to
the Compliance Officer referenced herein.
(2) The agency is ordered to process the remanded claims, (a) - (h),
to include complainant's claim of harassment, as well as her claim of
constructive discharge, as appropriate, in accordance with 29 C.F.R. �
1614.108.
The agency shall acknowledge to complainant that it has received
the remanded claims within thirty (30) calendar days of the date this
decision becomes final. A copy of the agency's letter of acknowledgment
to complainant must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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)
(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 (M0701)
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
August 26, 2002
__________________
Date
1 We note that the agency did not identify
the claims by letter, but we do so here for purposes of clarification.