01982453
03-10-1999
Judith G. Rittmeister, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Judith G. Rittmeister, )
Appellant, )
)
v. ) Appeal No. 01982453
Richard J. Danzig, ) Agency No. 97-62813-014
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
Appellant timely initiated an appeal from a Final Agency Decision
(FAD) dismissing a portion of appellant's September 4, 1997, complaint.
The agency defined the complaint as alleging discrimination on the basis
of age (DOB: 6/4/40) when:
On April 28, 1997, appellant received a performance rating of Minimally
Successful for the period of April 1, 1996, to March 31, 1997;
Effective June 22, 1997, appellant was denied a within-grade increase;
In May 1996, appellant's supervisor said, �I don't like you, I'll get
rid of you, I'll replace the staff with people with college degrees;
I haven't decided if I like you, and when I decide I don't like you I
have guns to back me up.�
Between 1996, and 1997, appellant's supervisor looked through her
personnel records and could not find much training and questioned
whether or not appellant had a college degree;
In May 1997, appellant's supervisor reminded her more than once about
retirement information for early buy-outs and encouraged her to determine
whether she could qualify;
Prior to June 6, 1997, a former employee told appellant that her
supervisor gave business cards to another employee and that appellant
was not supposed to know; and
In June 1997, appellant's supervisor told her that appellant was going
to be removed from her activity because her staff did not like her and
would not work for her.
The agency accepted allegation 1 for investigation. The agency dismissed
allegation 2 as moot and allegations 5, 6 and 7 for failing to state
a claim. Although in its statement on appeal, the agency treated
allegations 3 and 4 as if they had been dismissed for failure to state
a claim, in the FAD, the agency stated that the time limit for filing
these allegations would be suspended because allegation 1 was timely.
On appeal, appellant, who is a Supervisory Recreation Specialist,
submitted a clinical report from a state licensed psychologist.
The psychologist opined that on June 16, 1997, appellant had suffered an
emotional breakdown as a result of her inability to meet her supervisor's
demands.
Allegation 2
EEOC Regulation 29 C.F.R. � 1614.107(e) provides for the dismissal of a
complaint, or portions thereof, when the issues raised therein are moot.
To determine whether the issues raised in appellant's complaint are moot,
the fact finder 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). When such circumstances
exist, no relief is available and no need for a determination of the
rights of the parties is presented.
The agency dismissed allegation 2 as moot because the record shows that
appellant received a within grade increase effective June 8, 1997,
for work performance at an acceptable level of competence. We note
that in submitting the psychologist's clinical report, appellant
has raised the issue of compensatory damages. See generally Price
v. United States Postal Service, EEOC Request No. 05950480 (October
11, 1996). A complainant may raise compensatory damages at any time
during the administrative process, up to and including the appeal
stage, but not thereafter. Roubachewsky v. Department of the Navy,
EEOC Request No. 05960184 (January 6, 1997); Simpkins v. USPS, EEOC
Request No. 05940887 (September 28, 1995); Kyriazi v. Department of
Defense, EEOC Request No. 05930086 (March 4, 1994). Since appellant
may be entitled to compensatory damages, we find that the effects of the
alleged discrimination have not been completely eradicated and that the
allegation therefore is not moot. Pritt v. United States Postal Service,
EEOC Request No. 05950792 (July 3, 1997). Should appellant prevail on
this complaint, the possibility of an award of compensatory damages
exists. See Miller v. Department of Health and Human Services, EEOC
Request No. 05970174 (August 26, 1998). Therefore, the agency's decision
to dismiss allegation 2 was improper, and is hereby vacated and remanded.
Allegations 3 - 4
As noted above, the FAD clearly indicates that allegations 3 and 4 have
been considered timely accepted for investigation although the agency's
statement on appeal states that they have been dismissed on procedural
grounds. The agency may not assert a new ground for dismissing these
allegations on appeal. These allegations are considered timely filed
based on a continuing violation theory. We therefore remand allegations
3 and 4 for processing.
Allegations 5 - 6
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 sustains 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).
The Commission has repeatedly found that remarks or comments unaccompanied
by a concrete agency action are not a direct and personal deprivation
sufficient to render an individual aggrieved for the purposes of
Title VII. See Backo v. United States Postal Service, EEOC Request
No. 05960227 (June 10, 1996); Henry v. United States Postal Service,
EEOC Request No. 05940695 (February 9, 1995). The Commission finds that
allegations 5 and 6 were properly dismissed for failure to state a claim
pursuant to 29 C.F.R. � 1614.107(a).
Allegation 7
EEOC Regulation 29 C.F.R. � 1614.107(e) provides, in part, that the agency
shall dismiss a complaint or a portion of a complaint that alleges a
proposal to take a personnel action, or other preliminary step to taking a
personnel action, is discriminatory. If appellant's allegation was viewed
in isolation, clearly dismissal would be proper. We note, however, that
in certain situations, an agency action that alone might not suffice to
state a claim nevertheless becomes sufficient when viewed as one incident
in an alleged pattern of harassment in conjunction with other allegations.
See McLaughlin v. United States Postal Service, EEOC Appeal No. 01945657
(January 16, 1995). Moreover, if a proposed action is purportedly
combined with other acts of harassment to form an alleged pattern of
harassment, the agency may not properly dismiss it as a proposed action.
See Butler v. Department of Labor, EEOC Request No. 05891016 (December
1, 1989). Consequently, when appellant's allegation 7 is viewed in the
context of appellant's complaint of harassment, it cannot be considered
a proposed action. The agency's dismissal of allegation 7 was improper,
and is hereby vacated and remanded.
Accordingly, we VACATE the agency's January 5, 1998, dismissal decision
in part and REMAND certain allegations to the agency in accordance with
this decision and the ORDER below.
ORDER
1. 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.
2. The agency shall address whether the remanded allegations, considered
together, are sufficient to support a finding that appellant may
have been subjected to harassment that was sufficiently severe or
pervasive to alter the conditions of her employment. See supra, Cobb.
Within thirty days of the date this decision become final, the agency
shall either issue a letter to appellant accepting allegations 2, 3, 4,
and 7 for investigation or issue a new decision dismissing them. A copy
of either the letter accepting the allegations or the decision dismissing
them must be sent to the Compliance Officer as referenced herein.
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. � 1614.10.
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.
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
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 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 (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.F.R.).
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 10, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations