NANCY J. MANLEY, APPELLANT
v.
F. WHITTEN PETERS, ACTING SECRETARY, DEPARTMENT OF THE AIR FORCE, AGENCY.

Appeal No. 
01975901
Agency No. RXOF97-041

May 29, 1998

DECISION

Appellant filed an appeal with this Commission from a final decision of the agency concerning 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., Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §791 et seq., and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §621 et seq. Appellant received the final agency decision on July 12, 1997. The appeal was postmarked July 25, 1997. Accordingly, the appeal is timely (see 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed seven allegations of appellant's complaint on the grounds that the allegations failed to state a claim.

BACKGROUND

Appellant, a Supervisory General Engineer, GM-801-14, initiated contact with an EEO Counselor on March 17, 1997. On June 21, 1997, appellant filed a formal EEO complaint wherein she alleged that she was subjected to discriminatory harassment on the bases of her sex (female), age (45), physical disability (neurological), and in reprisal for previous EEO activity when:
1. On February 26, 1997, she received a Marginally Acceptable appraisal with the TQM element lowered and management did not follow the regulation as specified in the performance improvement plan.
2. On February 26, 1997, she received her "reaccomplished" appraisal in which she felt the timing was a form of harassment due to the pending mediation on another EEO complaint and in relation to the closeout period of the annual appraisal which would be used in a reduction-in-force.
3. On February 26, 1997, the Deputy Base Civil Engineer criticized her and told her to be less emotional because she had tried to have an individual perform the chapel roof project.
4. On March 5, 1997, the Deputy Base Civil Engineer criticized her in front of her staff about a suspense being closed although he admitted he did not think she did it.
5. On February 26, 1997, the Deputy Base Civil Engineer refused to give her a copy of the investigative report, thus causing her to file a freedom of information act request.
6. On February 25, 1997, she had not received anything on her performance improvement plan or a change to her appraisal.
7. On March 10, 1997, she became aware that the gas-line project being performed by the city of Warner Robins still did not have the required approval even though the Deputy Base Civil Engineer stated he would handle it and appellant's division was to stay out of it, but appellant's division has since been criticized because of it.
8. On February 19, 1997, the Deputy Base Civil Engineer criticized her for not following the new procedures about action line responses even though she was not in receipt of the procedures, they had not been implemented, and he stated that appellant's division was to blame for having the most problems in responding to the action lines.
9. On February 12, 1997, the Deputy Base Civil Engineer contacted appellant's division regarding a task that was not assigned to the division, but he criticized the division for the suspense being missed.

In its final decision, the agency dismissed allegations 3-9 on the grounds that they failed to state a claim. Allegations 1 and 2 were accepted for investigation.

On appeal, appellant contends that she has been subjected to a hostile work environment. Appellant claims that this situation is the result of continuous discrimination, harassment, and reprisal. According to appellant, the various issues set forth in her complaint demonstrate a pattern of harassment against her.

In response, the agency asserts that appellant is abusing the EEO process by filing a multitude of spurious complaints on a frequent and recurring basis. The agency notes that including the instant complaint, appellant has filed twelve complaints in the past three years. The agency argues that appellant is abusing the EEO process in the instant matter and with her other complaints by claiming that she is being subjected to a continued pattern of harassment. According to the agency, appellant is involved in a practice of making virtually every encounter that she has or allegedly has with her supervisors into an EEO complaint.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. §1614.107(a) provides that an agency may dismiss a complaint which fails to state a claim pursuant to 29 C.F.R. §1614.103. For employees and applicants for employment, EEOC Regulation 29 C.F.R. §1614.103 provides that individual and class complaints of employment discrimination prohibited by Title VII (discrimination on the bases of race, color, religion, sex and national origin), the ADEA (discrimination on the basis of age when the aggrieved individual is at least 40 years of age) and the Rehabilitation Act (discrimination on the basis of disability) shall be processed in accordance with Part 1614 of the EEOC Regulations. To establish standing as an "aggrieved employee" within the context of 29 C.F.R. §1614.103, appellant must allege, first of all, that she has been injured in fact. Hackett v. McGuire Bros., 445 F.2d 447 (3rd Cir. 1971). Specifically, appellant must allege some direct harm which affects a term, condition, or privilege of employment. See Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205 (1972). The only proper questions in determining whether an allegation is within the purview of the EEO process are whether the complainant is an aggrieved employee and whether she has alleged employment discrimination covered by the EEO statutes. An employee is "aggrieved" if she has suffered direct and personal deprivation at the hands of the employer. See Hobson v. Department of the Navy, EEOC Request No. 05891133 (March 2, 1990).

We find that allegations 3-9 of appellant's complaint state a claim. Appellant alleged that she was subjected to harassment with regard to her performance appraisal and the Deputy Base Civil Engineer's treatment of her in front of her staff and in terms of the projects her division was performing. We find that appellant is alleging a pattern of harassment due to her sex, age, physical disability and in reprisal for her previous EEO activity. 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 (November 12, 1993). We note that in a previous complaint filed by appellant, Nancy J. Manley v. Department of the Air Force, EEOC Appeal No. 01962040 (November 8, 1996), the Commission reversed the agency's final decision to dismiss allegations of her December 1995 complaint. The following language in the decision in Appeal No. 01962040 is equally applicable to the agency's dismissal of allegations 3-9 in the instant complaint:
Taken individually, the "sub issues" of appellant's complaint do not appear to state claims. Most are comments unaccompanied by any concrete action. Appellant has not explained how she was harmed in her employment with regard to any one of them.... However, appellant did not raise these matters as individual allegations of discrimination. Rather, appellant raised the issue of harassment in reprisal for prior EEO activity, and posited these matters as examples of the harassing conduct. Taken as such, this allegation plainly states a claim.

We find that the dismissed allegations of the instant complaint, when read together as examples of the alleged pattern of discrimination, state a cognizable claim. Accordingly, the agency's decision to dismiss allegations 3-9 of appellant's complaint for failure to state a claim was improper. These allegations are hereby REMANDED for further processing in accordance with the ORDER below.

While the agency argues that appellant is abusing the process by filing numerous complaints, the Commission has held that the mere filing of numerous complaints does not necessarily constitute an abuse of the process. Occasions in which application of the abuse of process standards are appropriate must be rare, because of the strong policy in favor of preserving a complainant's EEO rights whenever possible. See generally Love v. Pullman, Inc., 404 U.S. 522 (1972) and Wrenn v. EEOC, EEOC Appeal No. 01932105 (August 19, 1993). Based on the present record, we do not find evidence of abuse of the process.

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:

Ronnie Blumenthal
Director
Office of Federal Operations