0120054524
10-17-2007
Sophia N. Botello, Complainant, v. Stephen L. Johnson, Acting Administrator, Environmental Protection Agency, Agency.
Sophia N. Botello,
Complainant,
v.
Stephen L. Johnson,
Acting Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 01200545241
Agency No. 2005-0011-R02
DECISION
Complainant filed a timely appeal with this Commission from the final agency decision (FAD) dated July 14, 2005, dismissing her 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.2
On October 6, 2003, complainant initiated EEO contact. Informal efforts to resolve her concerns were unsuccessful.
On December 10, 2004, complainant filed the instant formal complaint. Therein, complainant claimed that she had been subjected to harassment on the bases of race (Hispanic), national origin (Puerto Rican), sex (female), and in reprisal for prior EEO activity, when she was subjected to "unlawful harassment" on "a continuing basis for as long as ten years and culminating on or about June 21, 2004, when [complainant] was placed on leave restriction by [named supervisor], which in turn caused her involuntary resignation on July 5, 2004." Complainant asserted the harassing incidents included absent without leave (AWOL) charges, denial of her flexi-place application, and denial or limitations on her ability to take Leave Without Pay (LWOP) during the 1999 to May 2003 time frame.
In its July 14, 2005 FAD, the agency dismissed complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim stating the claims did not rise to the level of actionable harassment. The agency further dismissed complainant's claims concerning events that occurred prior to May 2003 pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds of untimely EEO Counselor contact. The agency determined that complainant's initial EEO Counselor contact occurred on October 6, 2003, and was beyond the 45-day limitation period.
Dismissal: Failure to State a Claim
Upon a review of the record, the Commission finds that the agency improperly dismissed complainant's complaint for failure to state a claim. The record reflects that complainant has claimed that she has been treated differently from other employees in regard to a variety of time/attendance and leave issues, that her flexi-place application was denied, was placed on leave restrictions, and that she was subjected to harassment and a hostile work environment by management which culminated in her involuntary resignation. These matters state an actionable claim of harassment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). Many of the agency's arguments in support of its dismissal for failure to state a claim go to the merits of complainant's allegations, and cannot be appropriately considered at the dismissal stage before an investigation has been conducted.
Dismissal: Untimely EEO Counselor Contact
The agency also improperly dismissed complainant's claims on the grounds of untimely EEO Counselor contact. The record reflects that complainant initiated EEO Counselor contact on October 6, 2003. The Commission finds 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 at least one of the incidents comprising complainant's hostile work environment claim was timely raised. Specifically, in her December 10, 2004 complaint, complainant claimed that on June 21, 2004, she was placed on leave restrictions as part of her supervisor's alleged continuing campaign to harass her concerning attendance/leave issues. Complainant also asserted that the ongoing harassment eventually led to her involuntary resignation on July 5, 2004. While these events occurred after her October 6, 2003 initial EEO counselor contact, they did occur during counseling stage, and are sufficiently like or related to what she was discussing with the counselor that we find they were clearly part of her claim of ongoing harassment concerning attendance/leave related issues.
Accordingly, we REVERSE the agency's final decision dismissing complainant's 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 (E0900)
The agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq.3 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
October 17, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the above referenced appeal number.
2 The record reflects that the agency issued a corrected final decision dated July 14, 2005, replacing its initial May 2, 2005 final decision. Specifically, the agency inadvertently omitted a paragraph addressing the basis of reprisal in its initial May 2, 2005 final decision.
3 The agency should first clarify whether or not complainant is actually pursuing a constructive discharge claim. If she is, and this is a case where the Merits Systems Protection Board arguably has jurisdiction, the mixed case complaint procedures set out at 29 C.F.R. � 1614.302 should be followed rather than the procedures at 29 C.F.R. � 1614.108 et seq.
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0120054524
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
2
0120054524