0120170901
04-25-2017
Kimbery H.,1 Complainant, v. Robert M. Speer, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kimbery H.,1
Complainant,
v.
Robert M. Speer,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120170901
Agency No. ARGORDON13MAY04525
DECISION
On December 21, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated November 30, 2016, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a supervisor at the Agency's Dwight D. Eisenhower Army Medical Center, Integrated Disability Evaluation Center in Fort Gordon, Georgia.
On August 29, 2016, Complainant filed a formal complaint alleging that she was harassed based on her race (African-American), sex (female), and reprisal for prior protected equal employment opportunity (EEO) activity under Title VII when:
1. On May 2012, she was advised by the Chief, Patient Administration, not to have anything to do with an employee who filed an EEO complaint;
2. Between August 2012 and December 2013, her supervisor (S1) made statements about how he liked to perform oral sex, made slurping sounds to demonstrate how he did so, and made sexual remarks to female employees;
3. During January 2013 - May 2013, she was harassed and made to work in a hostile work environment; and
4. On May 16, 2013, she was issued a letter informing her that her term of employment would not be renewed and that her employment would cease effective May 21, 2013.2
Complainant wrote that on May 17, 2013, she went to the Fort Gordon EEO office to get information on the EEO complaint process. An "Information Inquiry Summary" form signed by Complainant and "EEO Official" 1 indicates initial contact on May 17, 2013. Therein, Complainant wrote that unlike others, her term appointment was not extended - she did not raise other matters. Language in the form confirmed Complainant was advised of the 45-calendar day time limit to initiate EEO counseling. EEO Official 1 wrote therein that Complainant had another job offer and wanted to decide later if she will file a complaint.
On June 24, 2013, EEO Official 1 provided Complainant a memorandum on "Aggrieved Person's Rights and Responsibilities" which detailed the EEO process, including that if resolution of her complaint is not achieved within 30 calendar days from the date Complainant initiated EEO counseling she would be given a notice of right to file a formal complaint, but if she was offered and accepted mediation, the notice time would be extended to 60 days.
On October 24, 2013, an EEO Administrative Technician confirmed to Complainant in writing that her mediation was scheduled for October 30, 2013. Complainant contends she had a scheduling conflict, and was advised the mediation would be rescheduled. She contends that she contacted EEO Officer 1 several weeks later and was told they were working on her complaint.
On December 18, 2015, Complainant sent an email to EEO Official 1 only updating her work contact information, which indicated she was an EEO Specialist, Affirmative Employment Program Manager, with an EEO Office at Fort Myer, Virginia. She contends that on June 16, 2016, she emailed the Fort Gordon EEO Complaints Manager requesting an update on her complaint processing and received no response.
Thereafter, on August 29, 2016, Complainant filed her EEO complaint. The Agency then wrote Complainant that a review of its EEO iComplaints data base, EEO complaint files, and the EEO Complaint Log covering May 17, 2013 - August 26, 2016, did not indicate that she contacted an EEO official to file an EEO complaint. Complainant responded in September 2016, with documentation of her contacts. The record contains the May 2013 intake form, the June 2013 memorandum, the October 2013 mediation scheduling email, and the December 2015 update contact email. The Agency responded to Complainant that her documentation did not show that she met with an EEO Counselor to have her EEO complaint counseled. At a minimum, Complainant provided the Agency with the above October 2013 and December 2015 emails, and she may have provided the other two referenced documents.
The Agency dismissed the complaint under the doctrine of laches, finding Complainant did not exercise due diligence in pursing her complaint by allowing it to languish. It reasoned that after mediation fell through in October 2013, Complainant did not contact the EEO Office again until December 2015 (over two years) - and then only with her work contact information. The Agency found that Complainant's next contact was in August 2016, to file her EEO complaint. As recounted above, Complainant asserted that a few weeks after mediation fell through she contacted EEO Officer 1, and on June 16, 2016, she emailed the Fort Gordon EEO Complaints Manager requesting the status of her complaint. The Agency argued on appeal that Complainant, an EEO Specialist, should know the importance of retaining correspondence in her case and did not provide copies of these emails.
On appeal, Complainant argues that laches do not apply because the Agency failed to notify her of the status of her complaint, failed to issue her a notice of right to file her complaint, and indicated they were working on her complaint, allowing her to become confused. In opposition to the appeal the Agency argues that laches applies. It also represents that EEO Officer 1 was the Fort Gordon EEO Director, and is no longer employed by the Agency.
ANALYSIS AND FINDINGS
In support its opposition to the appeal, the Agency cites Nichols v. United States Postal Service, EEOC Appeal No. 01A60899 (Apr. 13, 2006). In Nichols, we recounted that a complainant must act with due diligence in the pursuit of his claim or the doctrine of laches may apply. We explained that laches is an equitable remedy under which an individual's failure to pursue diligently his course of action could bar his claim. In Nichols, the agency acknowledged that the complainant may have received EEO counseling, but stated it had no record of his filing a formal complaint. In applying laches, we noted that the complainant waited five years after he claimed he filed his formal complaint to inquire about its status, and it was significant that he had some familiarity with the EEO process.
In support of her appeal, Complainant cites Gunn v. Small Business Administration, EEOC Appeal No. 0120080844 (Apr. 24, 2010). In Gunn, the complainant contacted an agency EEO counselor in March 2005, raising allegations of discrimination. Thereafter, among other things, her case was assigned from the EEO counselor to an agency EEO Assistant Administrator, and steps were taken but not completed to assign it to an EEO counselor outside the agency. In October 2007, the complainant returned to the EEO Office and asked that her claim be processed. Instead, the agency closed her informal complaint, and later argued laches applied. We found that laches did not apply because regardless of what may have transpired after March 2015, there was no dispute that the agency failed meet its obligation to issue the complainant a notice of right to file a formal complaint after the termination of informal counseling. We found that while the complainant could certainly be faulted for not being diligent in pursing her claims, the agency was more culpable.
Complainant also cites Williams v. Department of Defense, EEOC Appeal No. 0120130153 (Feb. 11, 2013). In Williams, the complainant initiated EEO counseling in May 2010, and in June 2010, the agency asked her to agree to a 60 day extension for counseling. Nevertheless, before the deadline to respond elapsed, in June 2010, the agency EEO Counselor sent the complainant by email her notice of right to file her complaint. Before the offer to extend elapsed, the complainant responded that she accepted the offer. Thereafter, in June 2010, the complainant and the EEO counselor exchanged emails about complainant amending her complaint, without mention it was closed. In July 2012, the complainant contacted the agency's EEO Office inquiring about status, and in August 2012, it responded that her pre-complaint was closed because she received her notice of right to file her complaint in June 2010, and never filed her complaint (passed the 15-day time limit). The complainant contacted the agency again in writing in August 2012, which construed this as the untimely filing of the complaint. In reversing the agency's dismissal, we found that given the counseling extension, the agency should have issued a second notice of right to file a complaint. We disagreed with the agency's argument that laches applied, explaining that the agency's actions contributed to the complainant's belief that it was continuing to process her EEO claim at the informal level.
Applying the above cases, we find laches. Complainant contacted the EEO Office in May 2013, to get information on the EEO complaint process, and once there said she had another job offer and wanted to decide later if she would file a complaint. This did not trigger the Agency's obligation to issue a notice of right to file a complaint. In opposition to the appeal, the agency argues that mediation alone does not show Complainant was actively pursuing a specific claim because mediations via the EEO Office are often conducted for a variety of reasons and not just when a complainant is formally pursuing a claim of discrimination. Prior to filing her formal complaint, Complainant was not assigned an Agency docket number, which the Agency suggested was its practice when there is an intention to file a complaint. The mediation email contains no docket number. While Complainant contends through her attorney that around November 2013, she contacted EEO Officer 1 and was told they were working on her complaint, there is no documentation of this, and given the timing of this alleged exchange it could have been about mediation. Unlike Gunn and Williams, there is a question on whether Complainant should have been given a notice of right to file a complaint. Complainant's next documented contact with the EEO Office was in October 2015, when she merely updated her contact information. By December 2015, Complainant was an EEO Specialist in an EEO Office working as an Affirmative Program Manager, and hence more likely than not was very familiar with the EEO process, which weighs against her on culpability on delay. She next contacted the EEO Office close to or in the Summer of 2016.
We find that culpability and equities weigh against Complainant for causing the delay of over three years before she filed her formal complaint, and hence laches apply.
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)
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. 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
April 25, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Complainant wrote in her complaint that while she had no clear evidence, she believed S1 was responsible for her receiving memos on May 20, 2013 and September 13, 2013, rescinding offers made to her on May 17, 2013, for Supervisory Health System Specialist (PEBLO), GS-12, and September 6, 2013, for Human Resources Specialist (Military), GS-11 "due to administrative error." The Agency did not capture these claims in its FAD, and Complainant does not mention them on appeal.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120170901
6
0120170901