EEOC Appeal No. 0120112862
10-21-2014
Complainant v. Dep't of Justice
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(U.S. Marshals Service),
Agency.
Appeal No. 0120112862
Agency No. USM-2010-00705
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 7, 2011, dismissing her 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Management and Program Analyst at the Agency's Northern District of California facility in San Francisco, California.
Complainant contacted the EEO Counselor on September 10, 2010. On November 9, 2010, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Chinese), national origin (USA), sex (female), religion (Buddhist), disability, age (55), and reprisal for raising a claim of harassment under Title VII of the Civil Rights Act of 1964 when she was subjected to harassment. In support of her claim, Complainant alleged that the following events occurred:
1. On September 25, 2008, the Deputy Chief grabbed her and caressed her back.
2. Complainant reported the unwanted touching to management including her supervisor (Supervisor). Since then, their attitude has changed towards her and it has become a hostile work environment.
3. The Deputy Chief often raises his tone at her and is hostile in his gestures and motions.
4. Complainant asserted that others in the office associated with the Deputy Chief have also become non-responsive to her. They shun her and give her dirty looks.
5. The Criminal Supervisor gives Complainant dirty looks and told others that Complainant needs to receive permission to go to their side of the office.
6. September 3, 2010, the Administrative Officer; Budget Analyst and Complainant were working on a budget and they needed to work late to complete the assignment. The Chief Deputy came out several times to harass them. He asked them several times what they were doing; he left to return shouting at the top of his lungs and raising his fists over his heads in a threatening manner; and asked "What are you people doing?" Complainant indicated that they were working.
The Agency identified only two claims, referred above as (1) and (6). The Agency dismissed claim (1) pursuant to 29 C.F.R. �1614.107(a)(2) for untimely EEO Counselor contact. The Agency noted that the event occurred on September 25, 2008, but Complainant did not contact the EEO Counselor until September 10, 2010, almost two years after the event. The Agency found no reason to extend the time limits. Therefore, the Agency dismissed claim (1). The Agency then dismissed claim (6) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency found that this event alone was not sufficient to state a claim of harassment. As the Agency dismissed the two claims it identified, therefore, the Agency dismissed the complaint as a whole.
This appeal followed. On appeal, Complainant provided support stating that she was subjected to a harm based on the alleged harassment.
By letter dated June 6, 2011, OFO notified the Agency of the filing and that it was required to submit a copy of the entire complaint file within 30 calendar days of the Agency's receipt of the letter of notification. The June 6, 2011 letter advised the Agency that failure to submit the entire complaint file within the specified time frame could result in the Commission drawing an adverse inference. The Agency has failed to comply with this notice, and OFO had not received the complete complaint file. Therefore, on July 10, 2014, OFO issued the Agency a Notice to Show Cause Why Sanctions Should Not Be Imposed. The Agency was ordered to show good cause why it has not submitted the complete complaint file in this matter. The Agency was notified that if it fails to submit the entire record in 30 days or show good cause why it cannot do so, OFO may: (1) draw an adverse inference that the requested information would have reflected unfavorably on the Agency; (2) consider the matters to which the requested information pertains to be established in favor of the Complainant; (3) issue a decision fully or partially in favor of the Complainant; or (4) take such other action(s) as appropriate.
The Agency failed to comply within 30 days. Subsequently, the Agency provided the Commission with the complaint file on October 16, 2014. The cover letter provided by the Agency included the original submission sheet stating that the file was submitted in June 2011. The record is now complete and OFO is able to address Complainant's appeal.
ANALYSIS AND FINDINGS
Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the Commission to extend the time limit if the complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence Complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission.
As an initial matter, we note that the Agency failed to identify the claim alleged in Complainant's formal complaint. We find, as stated above, that the alleged a claim of harassment based on her race, sex, age, religion, disability, national origin, and her prior protected activity. In support of that claim, Complainant alleged six events in her formal complaint. In addition, the EEO Counselor's report shows that Complainant alleged several other events including the Chief Deputy insulting her in front of an auditor, he threw Complainant's paperwork on the floor, and other coworkers spoke about her. We find that the Agency erred in identifying Complainant's single claim. We shall review the Agency's dismissal based on the single claim of harassment.
We note that the Supreme Court of the United States held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. The Court defined such "discrete discriminatory acts" to include acts such as termination, failure to promote, denial of transfer, or refusal to hire, acts that constitute separate actionable unlawful employment practices. Id. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id. Upon review, we find that Complainant contacted the EEO Counselor on September 10, 2010, within 45 days of the most recent event which occurred on September 3, 2010. Therefore, we find that the Agency's dismissal of the matter pursuant to 29 C.F.R. �1614.107(a)(2) was not appropriate.
Failure to State a Claim
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. As noted above, Complainant alleged a series of events which allegedly occurred from September 2008 through September 2010. Specifically, Complainant alleged that she was subjected to harassment which created a hostile work environment. Instead of treating these events as incidents of the claim of harassment, however, the Agency looked at them individually. Thus, we find that the Agency acted improperly by treating matters raised in Complainant's complaint in a piecemeal manner. See Meaney v. Dep't of the Treasury, EEOC Request No. 05940169 (Nov. 3, 1994) (an agency should not ignore the "pattern aspect" of a complainant's claims and define the issues in a piecemeal manner where an analogous theme unites the matter complained of). Consequently, when Complainant's claims are viewed in the context of Complainant's complaint of harassment, they state a claim and the Agency's dismissal of those claims for failure to state a claim was improper.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below.
ORDER (E0610)
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 (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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
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 (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
October 21, 2014`
__________________
Date
2
0120112862
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112862