01973264
03-24-2000
Ismail I. Shaishaa, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Ismail I. Shaishaa v. Department of the Army
01973264
March 24, 2000
Ismail I. Shaishaa, )
Complainant, )
) Appeal No. 01973264
v. ) Agency No. 09509F0240
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
)
DECISION
Ismail I. Shaishaa (complainant) timely initiated an appeal of a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the bases of national origin (Egyptian) and reprisal
(prior EEO activity), in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The appeal is
accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified
at 29 C.F.R. � 1614.405).
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Senior Auditor, GS-511-11-5, at the agency's Internal Review Office
in New York, New York. Believing he was a victim of discrimination,
complainant sought EEO counseling and, subsequently, filed a complaint
on September 8, 1995.<2> Therein, complainant alleged discrimination on
the bases of national origin (Egyptian) and reprisal (prior EEO activity)
at the hands of his immediate supervisor (hereinafter S1: Scotch-Irish,
Russian, Austrian, Polish; no prior EEO activity). Complainant alleged
that S1 discriminated against him when S1: (1) promised to provide
complainant with exceptional performance ratings for the past five years,
but refused to do so and instead provided fully successful appraisals
for two years; (2) imposed a very stressful and unhealthy atmosphere
in the office despite a previous commitment on October 24, 1995 to
change his attitude; (3) harassed complainant on an on-going basis,
including posting a note on the wall which read "Hit Head Here"; and
(4) took reprisal actions against complainant, including failing to
order complainant a new computer with the latest software even though he
was ordering one for the other auditor in the office (hereinafter CW:
national origin unspecified, but non-Egyptian; no prior EEO activity)
and himself and giving all the career advancement to CW and himself,
as opposed to complainant.
This complaint also included information about past behaviors of S1 and
information regarding EEO complaints and a Merit Systems Protection Board
(hereinafter MSPB) appeal filed by complainant in the past. On September
14, 1995, the agency informed complainant that it was rejecting Claim
Nos. 1 and 2 on the grounds that they each were the subject of previous
complaints. The agency rejected Claim No. 3 as untimely, noting that
the "Hit Head Here" incident occurred in June 1995. The agency accepted
Claim No. 4 for investigation. It informed complainant that he should
contact the agency if he believed that the issues of the complaint had
not been correctly identified.
Complainant contacted the agency by letter dated September 20, 1995,
to protest the rejection of Claim Nos. 1, 2 and 3. On September 26,
1995, the agency agreed to accept Claim No. 3: "Harassment by your
supervisor, regarding his placement of posters on his desk that you find
offensively placed there for your benefit"; along with Claim No. 4:
"Reprisal actions regarding the fact that you feel that you are the only
employee in your office not receiving a new computer." The agency again
indicated that unless complainant responded within five days, it would
conclude that the issues were properly identified. It appears from the
record that complainant did not contact the agency again. Neither of
the September 1995 letters rejecting certain of complainant's claims
included appeal rights to the EEOC.
At the conclusion of the investigation, complainant requested that the
agency issue a final agency decision.
The FAD did not address Claim Nos. 1 and 2, presumably relying on the
September 1995 rejection of those claims as stating the same claim
as two previous complaints. In terms of Claim Nos. 3 and 4, the FAD
concluded that complainant failed to establish a prima facie case of
national origin discrimination because he failed to establish that the
posting of a sign which read "Hit Head Here" was an adverse personnel
action affecting the terms, conditions or privileges of his employment.
The agency also found that complainant's late receipt of a new computer
in comparison to CW was not an adverse personnel action. The FAD went
on to conclude that complainant failed to establish that he was treated
less favorably than a similarly situated individual outside his protected
group. Specifically, the FAD concluded that complainant was not treated
less favorably than his coworkers due to the posting of the "Hit Head
Here" note because anyone in the office could have seen it. The FAD
also noted that CW was not similarly situated to complainant because he
outranked complainant in grade and had the worst computer in the office.
The FAD also concluded that complainant failed to establish a prima facie
case of reprisal discrimination when he failed to show he was subjected
to an adverse employment action and when he failed to show a causal nexus
between the issues of the instant complaint and his prior EEO activity.
The FAD went on to supply management's articulated non-discriminatory
reason for its actions. S1 testified that the note was posted facing
his desk and was only visible to complainant because their desks were
side-by-side. The note was intended as a reminder to S1, from himself,
that he could not always do something about upper management's actions
when he disagreed with them. S1 further testified that the budget only
allowed for one new computer to be ordered per fiscal year. Because CW
had more seniority than complainant and had the worst computer, he
received a computer in FY 94. S1 then ordered one for himself in FY 95
and one for complainant in FY 96.
Finally, the FAD concluded that complainant had offered no evidence or
corroborating testimony to confirm his claims that management's actions
were based on his national origin or prior EEO activity. Therefore,
the FAD found that no discrimination or retaliation had occurred.
CONTENTIONS OF APPEAL
Complainant makes numerous contentions on appeal. Several of
complainant's arguments concern the agency's failure to investigate the
issues surrounding Claim Nos. 1 and 2. Complainant notes that most of
the issues he presented did not receive proper review or investigation.
Complainant argues that he established a prima facie case "in all issues
raised". He also provides information about previous actions by S1 that
were the subject of prior complaints and/or grievances.
The agency offers no new contentions on appeal.
ANALYSIS AND FINDINGS
Turning first to Claim Nos. 1 and 2, the new regulations require an agency
to notify complainant in writing when it determines that some but not all
of the claims in a complaint should be dismissed. Complainant may not
appeal a partial dismissal until final action is taken by the agency on
the remainder of the complaint. See EEOC Regulation 37,644, 37,656 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.107(b)).
In the case at hand, the September 1995 letters dismiss Claim Nos. 1 and
2 for raising the same issues as raised in prior complaints. On appeal,
complainant contests this dismissal. After a thorough review of the
record, the Commission finds that the agency did not provide sufficient
evidence to support its dismissal. Commission regulations provide for
the dismissal of a complaint, or portion of a complaint, that states
the same claim that has been decided by the agency or the Commission.
See 29 C.F.R. � 1614.107(a)(1); see also Terhune v. United States
Postal Service, EEOC Request No. 05950907 (July 18, 1997). In order
to determine whether a formal complaint presents "identical matters"
as a prior complaint, three elements of the complaint are reviewed: (1)
the date of the most recent event; (2) the prohibited bases alleged; and
(3) the facts which resulted in the alleged discrimination. See Jordan
v. Department of the Treasury, EEOC Appeal No. 01964461 (June 10, 1997).
The agency did not provide evidence of these elements in the record.
Accordingly, the agency's implicit dismissal of Claim Nos. 1 and 2
was improper.
We next turn to Claim No. 3, in which complainant stated that S1 harassed
him on an on-going basis, specifically identifying an instance wherein
S1 put "a piece of yellow stick" on the wall which said "Hit Head Here".
Complainant felt that this was meant to harass him and to illustrate S1's
view that complainant could not prevent S1 from doing whatever he wanted.
We note that complainant cited several other incidents of harassment
in his complaint, though he also seemed to indicate that these other
incidents were reported in other complaints and/or grievances.
The agency found that complainant failed to establish a prima facie case
of national origin or reprisal discrimination in regard to this harassment
claim, because he failed to show that a term, condition, or privilege
of employment was affected. We find, however, that complainant clearly
intended to raise an overriding allegation of harassment. 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.
In the instant case, complainant contends that the posting of a note on
the wall reading "Hit Head Here" constituted harassment. While this
incident, if isolated, would not be enough to state a claim of harassment,
complainant describes several other "previous acts of harassment" in
his complaint. Moreover, it is possible that complainant intended to
include Claim Nos. 1, 2, and 4 in his overriding claim of harassment.
The fragmentation, or breaking up, of a complainant's legal claim
during EEO complaint processing has been a significant problem in the
federal sector. For complainants, fragmented processing can compromise
their ability to present an integrated and coherent claim of unlawful
employment practice for which there is a remedy under the federal
equal employment statutes. For agencies and the Commission, fragmented
processing substantially increases case inventories and workloads when
it results in the processing of related matters as separate complaints.
See EEOC Management Directive (MD) 110, as revised, November 9, 1999.
In the case at hand, the record indicates that complainant is essentially
alleging that he was the victim of ongoing harassment at the hands of S1.
He makes references to other complaints and claims of harassment he has
filed and alleges that the agency refuses to investigate his claims.
Although, as noted above, Claim No. 3 appears insufficient to constitute
a hostile work environment, it may, when consolidated with Claim Nos. 1,
2, 4, and other allegations of harassment pending at the agency, be
sufficient. The Commission finds, therefore, that complaint's claim
of national origin and reprisal harassment should be investigated and
adjudicated as one claim of harassment.
In order to rectify the problem and ensure efficient and equitable
processing of the complaint, we remand this matter to the agency so
that all pending claims of harassment�including Claim Nos. 1-4, may be
consolidated. Accordingly, we VACATE the agency's decision and REMAND
this matter in accordance with the following order and the applicable
EEOC regulations.
ORDER
The agency is ORDERED to consolidate for processing the claims of
national origin and retaliatory harassment pending before the agency,
which are like or related to the instant complaint.
Pursuant to EEOC Regulation 38,644, 37,661 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.606), the agency shall
complete its investigation within the earlier of 180 days after the
filing of the last complaint, or 360 days after the filing of the original
complaint. The agency shall make every effort to locate and determine the
status of complainant's complaints in the federal EEO process, if any,
and consolidate the complaints for hearing, if complainant requests,
or for an agency final decision.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation.
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 (M0300)
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); 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 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 (R1199)
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:
3/24/00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On 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.
2 The complaint is not dated, but the Investigative Report and FAD refer
to September 8, 1995 as the filing date, with no protest from complainant.