01982808_r
03-30-1999
Frances Zah, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Frances Zah, )
Appellant, )
)
v. ) Appeal No. 01982808
) Agency No. IHS-077-97
Donna E. Shalala, )
Secretary, )
Department of Health and )
Human Services, )
Agency. )
______________________________)
DECISION
On February 17, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated February 2, 1998, pertaining to
her 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.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. �621 et seq. In its final decision, the agency defined the
allegations as whether appellant was subjected to discrimination on the
bases of race (Native American), sex (female), and age (over 40) when:
On May 2, 1997, appellant's immediate supervisor pretended to have
a skirt on, bent over, and pretended he was pulling the skirt up to
expose his posterior;
On June 2, and June 13, 1997, appellant's immediate supervisor �glared�
at her.
The agency dismissed both allegations pursuant to EEOC Regulation 29
C.F.R. �1614.107(a), for failure to state a claim. Specifically, the
agency found that the three incidents alleged were not egregious enough
to state a claim of harassment. The agency also found that appellant's
claims of mental health damages from the incidents did not convert the
allegations into process-able claims.
On appeal, appellant claims that the agency unjustifiably failed to
consider many other incidents of harassment which appellant included in
her formal complaint and counselor intake form. Appellant submitted a
list of incidents, dated from 1993 through December 1997. In addition
to the matters addressed by the agency's FAD, they include, inter alia,
that abusive and foul language was used repeatedly against appellant, that
appellant, unlike similarly situated employees, was denied administrative
leave to attend continuing education classes, and that appellant was
humiliated by her supervisor insulting her job performance in front of
other staff members.
A review of the record reveals that appellant submitted a three page
handwritten letter with her formal complaint, in which she listed various
incidents of harassment, including, inter alia, that supervisory staff
repeatedly used inappropriate, abusive language toward appellant, that
appellant's supervisor belittled and insulted her when she sought advice
about a medical condition from which she suffered, and that appellant
was denied requests for administrative leave to attend Continuing Medical
Education, but similarly situated coworkers were granted administrative
leave for Continuing Medical Education. Appellant further alleged
that the treatment she received from supervisors created a hostile
work environment which made it hard for her to concentrate at work.
The agency failed to address these issues.
The formal complaint and Counselor's Report also alleged discrimination
based on reprisal for appellant's prior EEO activity, but the agency
failed to include the basis of reprisal.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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;
�1614.106(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).
In her complaint, appellant alleged a series of harassing events
occurring from 1993 through December 1997. Specifically, appellant
alleged that she was subjected to a pattern of harassment at the hands of
her supervisors, which created a hostile work environment. The agency
failed to address a number of the incidents of alleged harassment.
When all the incidents are properly considered, we find that a
pattern of harassment emerges, i.e., the actions were perpetuated
by supervisory staff, appellant was repeatedly subjected to abusive
language and insults, her leave requests were denied, and she was
humiliated in front of coworkers. When considered in the light most
favorable to the complainant, we find that appellant complaint states
a claim of harassment. See Cobb v. Department of the Treasury, EEOC
Request No. 05970077 (March 13, 1997). Thus, we find that the agency
acted improperly by treating matters raised in appellant's complaint
in a piecemeal manner. See Meaney v. Department of the Treasury, EEOC
Request No. 05940169 (November 3, 1994) (an agency should not ignore
the "pattern aspect" of a complainant's allegations and define the
issues in a piecemeal manner where an analogous theme unites the matter
complained of). By alleging a pattern of harassment, appellant has
stated a cognizable claim under the EEOC regulations. See Cervantes v,
United States Postal Service, EEOC Request No. 05930303 (Nov. 12, 1993).
Finally, we note that the agency failed to include reprisal as a basis
for appellant's complaint. Upon review, we find that appellant clearly
raised this basis with the EEO Counselor and in her formal complaint.
Accordingly, on remand, the agency shall include the basis of reprisal
in the further processing of appellant's case.
CONCLUSION
Accordingly, the agency's dismissal of appellant's complaint of harassment
from 1993 through 1997, is REVERSED. The complaint as defined herein,
including the basis of reprisal, is hereby REMANDED to the agency for
further processing in accordance with the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
March 30, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations