EEOC Reverses @StateDept’s Dismissal of Ongoing Harassment Complaint

 

 

EEOC Appeal No. 2020004444:
Opal V. v. Dep’t of State, EEOC Appeal No. 2020004444 (Oct. 8, 2020)(Complainant’s complaint was more properly characterized as one of ongoing harassment by her supervisor and several subordinates.  Complainant alleged a series of events which created a hostile work environment over several months, including one incident involving a meeting with her supervisor that occurred within the 45 days prior to her email contact with the EEO Counselor.  The EEO Counselor’s report specifically referenced Complainant’s allegation of a hostile work environment based on her sex.  Therefore, Complainant stated a viable claim.  The Agency’s assertion that Complainant failed to show a nexus between her sex and the alleged harassment went to the merits of the claim without a proper investigation and was irrelevant to the procedural issue of whether Complainant stated a justiciable claim).
Excerpt:

At the time of events giving rise to this complaint, Complainant worked as an Information Programs Supervisor, FS-03, at an Agency facility in Brussels, Belgium.

On May 31, 2020, Complainant filed a formal EEO complaint. The Agency, in its dismissal decision, characterized the complaint as alleging that Complainant was subjected to discrimination on the basis of sex (female) when:

1. On February 25, 2020, Complainant was verbally counseled.


2. Complainant was subjected to an ongoing hostile work environment characterized by management communicating directly with Complainant’s subordinate employees without her, and management’s failure to admonish subordinates about using the term “mothering” and management’s own use, and condoning, of the use of terms and actions that Complainant found sexist and offensive.

On July 5, 2020, the Agency issued a final decision dismissing the complaint for failure to state a claim and for untimely EEO contact, reasoning that Complainant initiated EEO contact on April 28, 2020. The Agency stated that, “even if Complainant did not have actual knowledge [of the timeframes for initiating EEO counseling], she had constructive knowledge because she completed a No Fear training on March 3, 2009,” and the Agency had notices posted on the Agency’s website regarding the EEO process. The Agency dismissed the second allegation, reasoning that it did not rise to the level of an adverse action. The Agency found that referring to Complainant as “mothering” and “tasking her subordinate employees, without including her is not sufficiently severe or pervasive to rise to the level of a hostile work environment.”
[…]
On appeal, Complainant argues that when the Agency dismissed her complaint for failure to state a claim “the essence of the complaint is being ignored, that she was subjected to sex-based harassment by two employees over a six-month period, which was condoned by management.” The EEO Counselor’s Report stated that Complainant claimed that “because of sex, she was subjected to a hostile work environment characterized by, but not limited to, her supervisory position being treated as irrelevant” and that she was in a work environment that continually subjected her to “offensive gender-based comments or treatment”. Complainant also stated that management condoned the subordinate employees’ sexist attitudes. The EEO Counselor’s Report also stated that Complainant claimed that her male supervisor “has a practice of tasking her with all of the section’s trivial errands and personnel issues, while reserving the allocation of desirable, high profile projects for him to assign.”

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. Significantly, Complainant claims that her male supervisor, on an ongoing basis, undermined her own authority with her subordinates andcondoned what she believed to be sexist comments and attitudes directed against her because of her sex. We conclude that Complainant has made sufficient allegations to state a viable claim of discriminatory harassment which requires further investigation and processing. While the Agency claims that Complainant has failed to establish a nexus between her sex and the alleged harassment, this is addressing the merits of the claim without a proper investigation and is irrelevant to the procedural issue of whether Complainant has stated a justiciable claim under Title VII. See Osborne v. Department of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United States Postal Service, EEOC Request No.
05930220 (August 12, 1993); Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642 (August 15, 1991).


For the reasons stated above, we find that Complainant’s complaint was improperly dismissed, pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. We caution the Agency that, on remand, it should avoid fragmenting Complainant’s overall hostile work environment claim in a piecemeal manner.

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