Roger D. Stanford v. Department of the Army 01A44268 December 16, 2004 . Roger D. Stanford, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency. Appeal No. 01A44268 Agency No. ARFTBENN04FEB000008 DECISION Complainant appeals to the Commission from the agency's April 30, 2004 decision dismissing his complaint. According to the decision, complainant alleges discrimination on the bases of race (White) and sex (male) when: (1) on January 7, 2004, he was harassed by Ms. X when she pointed out that he misspelled a claimant's name in the data base; (2) on December 4, 2003, CPT Mr. Y, gave him a written counseling statement; and (3) from 1993 to 2004, he was harassed by Ms. X when Ms. X, in April 1993, stated that he treated Black claimants differently than others; in September 2000, Ms. X yelled at him for not telling her where he took annual leave and she told co-workers that he did not like Black people and that he had dropped his disabled son from his insurance policy. The agency dismissed claim 1 pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The agency dismissed claim 2 and 3 for untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). We find that the agency misdefined complainant's complaint. Complainant is actually alleging one claim of harassment. Complainant, in his formal complaint lists numerous incidents which comprise complainant's harassment claim. Complainant alleges the following incidents: Ms. X comments to complainant that “Black men think [her] legs are sexy;” Ms. X told co-workers that complainant treats Black claimants differently than White claimants and that complainant is a racist; Ms. X yelled at complainant for not telling her where he was when he took annual leave one afternoon. Ms. X said that complainant's wife called for him and she didn't know what to tell her; Ms. X told co-workers that complainant didn't like Black people and that he would not allow Black people to ride in his car; Ms. X asked to be the Victim Witness Liaison Officer for the Office of the Staff Judge Advocate. Complainant requested to be considered for the position and given the same training opportunities as Ms. X, but was denied because the office wants a Black female in the position; Ms. X physically assaulted complainant in the presence of other co-workers and the Chief of Claims. No action was taken against Ms. X. Complainant, however, was “written up” by the Chief of Claims who laid blame for the physical assault on complainant. The Chief of Claims made the statement to complainant in the presence of Ms. Y: “Who are they going to believe [complainant]? Two [W]hite males in their 40s or a [B]lack woman and [B]lack man?” The Chief of Claims further said that if someone filed an EEO complaint against him they would be fired. Complainant requested intervention through Violence in the Workplace Committee. They recommended that either Ms. X or complainant be moved from the Claims Division into a different location within the building. All of complainant's requests to be moved were denied; The office checked telephone logs and found that Ms. X made a substantial number of personal long distance calls on her government phone. There was no discipline issued and she is only required to make payment to the office for the charges; Complainant's ex-wife, who was fully aware of the animosity between Ms. X and complainant, called the office and told Ms. X that complainant dropped his disabled son from his health insurance policy. Ms. X did not refer the call to complainant and proceeded to spread the rumor; Ms. X and complainant were required to meet with Colonel W in reference to the assault in the Claims Office. Colonel W told complainant and Ms. X that he did not see it as a big deal and that there would be no discipline for either party. Ms. X produced a “Fard Log” that she gave to the Colonel documenting each time she allegedly heard complainant “pass gas.” Copies of the “Fard Log” were made by supervisors and passed around the office for others to view as a source of amusement and to show how petty some employees are. Complainant became known as “Fart man” and “Stinky;” Ms. X complained to Chief of Claims, MAJ Z that CPT V told complainant that he was to be Chief of Claims without her being present. She felt that she was excluded intentionally because she was Black and that the conversation between the Captain and complainant was “a [W]hite man–[W]hite man thing;” Ms. X complained to Chief of Claims that she heard complainant allegedly “pass gas” while he was in his office; Ms. X complained to Chief of Claims that she heard complainant use the word “fart” in a private conversation within her hearing range. As a result, complainant was given a written warning stating that he had violated “office decorum.” The warning has not been removed from his file to date; A Black male, Mr. A, “passed gas” in the presence of several co-workers just one day after complainant was written up for violating the “office decorum” and Mr. A was not reprimanded or written up by his superiors; Ms. X entered his closed office and reprimanded complainant for misspelling a claimant's name in the Claims database. Ms. X opened the files and spelled the claimant's name out for him. Ms. X stated that she had to send the payment information 3 times because of his error. In response to the agency's request for clarification of the complaint, complainant indicated that on December 4, 2003, he received written counseling for violation of “Office Decorum.” Specifically, Ms. X claimed that on December 3, 2003, she heard a noise that sounded like a “fart” coming from his office. She claimed that on December 2, 2003, she overheard him say the word “fart” in a private conversation within her hearing range. However, complainant claims that on December 5, 2003, a Black male “farted” in the presence of several co-workers and did not receive written counseling for violating office decorum. Complainant also alleges that he has been continually harassed by Ms. X when she physically assaulted him in September of 2000, and was never disciplined for her assault. Further, complainant alleges that Ms. X continues to verbally assault him and slander him in front of co-workers. Complainant alleges that his requests to move have been denied. Complainant argues that because he is a White male, alleged infractions are dealt with swiftly and harshly while actions of his Black co-workers are treated in the same harsh manner. Complainant argues that he was “written up” because a Black female accused him of “farting” while the same Black female has physically assaulted him, slandered him to his co-workers by calling him a racist, yelled at him, and made long distance phone calls on government phone lines with the full knowledge of management, and has never been reprimanded. He argues that Black males can “fart” in the presence of the Deputy and other co-workers and not be disciplined and women can use the term “brain fart” in the presence of others without fear of being reprimanded. We find, first, that complainant's harassment claim is severe or pervasive enough to state a claim of harassment. Thus, the agency's dismissal for failure to state a claim was improper. Second, we find that the agency's dismissal for untimely EEO Counselor contact was improper. The record indicates that complainant initiated EEO Counselor contact, at the latest, on February 2, 2004. A fair reading of complainant's complaint indicates that the harassment is ongoing. Thus, we find that complainant is alleging harassment within the 45 days of his contact with an EEO Counselor. The agency's decision dismissing complainant's complaint is REVERSED and we REMAND the matter, as defined in this decision as one claim of harassment, to the agency for further processing in accordance with this decision and applicable regulations. ORDER (E0900) The agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The agency shall acknowledge to the complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The agency shall issue to complainant a copy of the investigative file and also shall notify complainant 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 complainant requests a final decision without a hearing, the agency shall issue a final decision within sixty (60) days of receipt of complainant's request. A copy of the agency's letter of acknowledgment to complainant 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 (K0501) 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 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) (1994 & Supp. IV 1999). If the complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) 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 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 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 (R0900) 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: ______________________________ Carlton M. Hadden, Director Office of Federal Operations December 16, 2004 __________________ Date