0120121472
06-12-2012
_______________, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
_______________,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120121472
Agency No. ARREDSTON11OCT04482
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated December 28, 2011, dismissing a formal complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., the Age Discrimination in Employment Act of 1967, as amended (ADEA), 29 U.S.C. �621 et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Division Chief at the Agency's Congressional and Public Affairs, United States Army Security Assistant Command (UASAC) in Redstone Arsenal, Alabama.
On October 9, 2011, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On December 2, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that she was subjected to harassment and a hostile work environment on the bases of sex, disability, and age when:
a. from the last week of April 2008 through June 2011, her supervisors, a named male supervisor (S1) and a named female supervisor (S2) failed to prevent her from being verbally threatened by a Sergeant Manager (SGM) because of an incident she reported to a Colonel;
b. from October 14, 2010 through June 2011, she was repeatedly harassed about her whereabouts, yelled at, stalked, denied union representation during meetings, told to apply for positions outside UASAC and threatened by S1, unlike her counterparts;
c. in June 2011 and July 2011, she was subjected to violent outbursts, openly degraded, mocked, yelled at, threatened with an insubordination write-up and was physically blocked by S2 in front of fellow co-workers, when she stated "she has a note for everything" and "she didn't need to have the surgery;"
d. on July 5, 2011, S2 requested that she provide a detailed report of her time on a daily basis with supporting documentation to validate comp hours earned during her trip to the Paris, France International Air Show, unlike her counterparts;
e. in July 2011, she became aware that S2 kept an extensive record of her PII information and movements unlike her counterparts, which was compromised when she found S2's Army green book in the lobby, unattended;
f. in July 2011, she became aware she was given an unfair score of 75% on her Annual Appraisal, without midpoint counseling to address any issues by S2;
g. on October 9, 2011, she became aware that a named employee's supervisor had instructed her to shred the FOIA documents Complainant requested when she was not selected for the position of Director Public and Congressional Affairs GS-14 after performing the duties from July 2010 through November 2010;
h. on October 21, 2011, she became aware that S2 completed a second Annual Performance Appraisal on October 4, 2011 without her knowledge after having her sign the original document without her senior rater's signature or remarks on July 21, 2011;
i. in or about late September 2008, during the Change of Command, she was physically grabbed and moved forcefully by her senior rater (SR);
j. in October 2008, she was subjected to verbally degrading comments by SR when he yelled "could this sign be any fucking smaller" and "what kind of fucking PAO are you" during the AUSA Symposium in Washington D.C.;
k. in September 2009, S1 failed to prevent her from verbal degradation by SGM when he yelled at her, accused her of being in his office, and called her a "pussy;" and
l. in October 2009 and October 2010, S1 failed to prevent her from being verbally degraded by SGM when he yelled at her and cursed at her during the AUSA Symposium in Washington D.C.
In its December 28, 2011 final decision, the Agency dismissed claims a and c - l on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's initial EEO contact was beyond the requisite 45-day limitation period. The Agency dismissed claim h on the alternative grounds of failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the Agency found that unless the conduct is severe, a single incident or group of isolated incidents will not state a claim of discriminatory harassment.
Further, the Agency dismissed claims b and g on the grounds that Complainant raised the same matter in a negotiated grievance process, pursuant to 29 C.F.R. � 1614.107(a)(4). The Agency determined that Complainant filed a grievance concerning the same issues, before her formal EEO complaint was filed on December 2, 2011.
ANALYSIS AND FINDINGS
Claims b and g - Negotiated Grievance
An Agency subject to 5 U.S.C. � 7121(d) may dismiss an EEO complaint where the matter was first raised in a negotiated grievance procedure that permits claims of discrimination to be raised. See 29 C.F.R. � 1614.107(a)(4). The collective bargaining agreement must allow employees to raise matters of alleged discrimination under the 29 C.F.R. Part 1614 EEO process or under the negotiated grievance procedure, but not both. An election to proceed under a negotiated grievance procedure is made by the filing of a written grievance irrespective of whether the Agency had informed the individual of the need to elect or whether the grievance has actually raised an issue of discrimination. See 29 C.F.R. � 1614.301(a). Complainants elect the EEO process by filing a formal EEO complaint prior to filing a timely written grievance. See id.
In the instant matter, the record does not contain a copy of the collective bargaining agreement, referenced by the Agency in its final decision, that reflects that the negotiated grievance procedure permits claims of discrimination. It is the burden of the Agency to provide evidence or proof to substantiate its final decision. See Marshall v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991).
Claim h - Failure to State a Claim
The Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment by dismissing claim h for failure to state a claim. A fair reading of the matters identified in those claims reflect that Complainant claims that she was subjected to a series of related harassing incidents from April 2008 through October 2011. In her formal complaint, Complainant requested that all of the responsible management officials be issued a Letter of Reprimand; to be reassigned outside of current work unit; restoration of her annual leave and sick leave; compensation as a remedy; and an apology. These matters, taken together, state an actionable claim of harassment. By alleging a pattern of harassment regarding claim h, Complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993).
Claims a and c- l - Untimely EEO Counselor contact
The Agency also improperly dismissed claims a and claims c - l on the grounds of untimely EEO Counselor contact. The record reflects that Complainant initiated EEO Counselor contact on October 9, 2011. The Commission has held that "[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence." EEOC Compliance Manual, Section 2, Threshold Issues at 2 - 75 (revised July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)).
The record reflects that various incidents comprising Complainant's harassment/hostile work environment claim occurred within the 45-day time period preceding Complainant's October 9, 2011 EEO Counselor contact, as discussed above. Because a fair reading of the record reflects that the matter identified in claims a, and claims c - l is part of that harassment claim, we find that the Agency improperly dismissed these matters on the grounds of untimely EEO Counselor contact.
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's formal complaint, defined herein as a harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claim (harassment/hostile work environment) in accordance with 29 C.F.R. � 1614.108 et seq. 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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).
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
June 12, 2012
__________________
Date
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0120121472
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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