0120122009
09-18-2012
Ana E. Estevez, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Ana E. Estevez,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120122009
Agency No. ARLEWIS11MAR01014
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated January 25, 2012, 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 Dental Assistant at the Agency's Madigan Army Medical Hospital, Dental Clinic #3 facility in Fort Lewis, Washington. Starting three months after Complainant began working for the Clinic, a soldier began to harass her. The record documents that the harassment began as verbal and then progressed to physical touching, threats and obscene actions. Complainant attempted to bring this matter to the attention of the Non-commissioned Office in Charge (S1), but nothing was done. Another co-worker brought the matter to management's attention regarding the soldier's actions against the co-worker.
On October 4, 2011, the Agency sent Complainant a notice of her right to file a complaint. On October 18, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of national origin (Dominican / Hispanic), sex (female), disability (unspecified), and age (40) when, on unspecified dates from September 2009 to December of 2011, she was sexually harassed and assaulted by a soldier at her workplace.
In May of 2011 and prior to her filing the formal EEO complaint, Complainant filed a work injury claim for stress related to her informal EEO complaint. Complainant continued to work at the Clinic, but on a reduced schedule, due to an injury.
The record on appeal includes witnesses' statements that attest that Complainant notified S1 of the harassment on June 8, 2010 and June 19, 2010. One witness averred in a statement, dated April 4, 2012, that she witnessed "an incident of him once again getting extremely close to her and putting his genital area near her face area" and that "he was also allowed to come back into Dental Clinic 3 on more than one occasion." In addition, Complainant averred that, on June 21, 2010, she "expressed to S1 that she was being over worked, bullied and harassed" by three individuals, including the alleged harasser. She told S1 about her concerns that the soldier was tripping her and hurting her. S1 told Complainant that S1 thought that Complainant "had a personal problem" and "was making a big deal out of nothing." S1 denies that Complainant told her that she was being sexually harassed.
On August 25, 2010, one of Complainant's coworkers (Coworker A) contacted the Agency's EEO Office and initiated counseling regarding the inappropriate conduct of a sexual nature by the same solider, who was also allegedly harassing Complainant. The EEO Office informed management of the situation on, or about, August 30, 2010.
On September 7, 2010, the soldier's supervisor (SGT) reassigned the soldier out of Clinic 3, although the record shows that the soldier was not banned from the premises and did occasionally return to Clinic 3.
During the Agency's criminal investigation of the Coworker's claims, Complainant was identified as a possible witness. Complainant was interviewed in January of 2011 and Complainant told the investigator that, at one unspecified time, while she was seated at her desk, the soldier stood near her with his genital area about an inch from her nose. Complainant told the criminal investigator that she told the solider to move away, that he did and that he did not bother her again after that time. On March 14, 2011, and after Complainant's husband returned from deployment to Iraq and learned of the alleged harassment, Complainant contacted the EEO Counselor to file her own complaint.
In addition, on March 21, 2011, Complainant was seen by one of the Agency's License Marriage and Family Therapists. Complainant provided to the EEO Counselor a letter, dated April 6, 2011, in which the Therapist stated that Complainant was under "significant distress could have been prevented [her] from completing the EEO claim process." The record does not contain medical documentation or evidence created during the period at issue. On March 24, 2011, Complainant relayed to the EEO Counselor other incidents and lewd conduct by the solider toward Complainant.
During March of 2011, Complainant received her midpoint evaluation, which Complainant described as "a very positive outcome and evaluation." After receiving her evaluation, Complainant was cautioned to "watch your back and be careful." Complainant stated that she then felt threatened and that this was an example of the "hostile environment" she had to deal with and she "always felt watched, with fear."
Thereafter, Complainant left the country for an unspecified period of time. When the Agency questioned management why Complainant was not at work, Complainant's husband on May 2, 2011, informed the Agency, by email, that he "currently [has] a general power of attorney to talk and handle all her affairs since she is not capable of doing it herself." The Agency asked for the power of attorney, after Complainant's husband requested what he need to do since Complainant "has exhausted all her sick and annual leave hours and needs some help to determine what she needs to fill out in order for her to continue to get paid for administrative leave, etc." On May 4, 2011, Complainant's husband sent an email to the Agency, stating "[Complainant] is not at work because she has been diagnosis [sic] with a mental medical problem due to stress, anxiety and panic attach [sic] caused by the work place."
Further, the record shows that the Agency provided two hours of training on "Equal Opportunity / Prevention of Sexual Harassment" to 120 employees on February 18, 2010. The record also includes a copy of the EEO signs that the Agency posted at "Building 5164, Utah Avenue" to advise employees to contact the Civilian EEO Office within 45 days of the alleged discrimination. S1 averred that there was a poster on the employee bulletin board in Dental Clinic 3, but the location was not specified.
The Agency dismissed Complainant's EEO complaint on the grounds of untimely EEO Counselor contact, finding that Complainant contacted an EEO Counselor on her claims on March 14, 2011, beyond the 45-day time limit set by the Regulations. The Agency deemed the EEO Counselor contact occurred 73 days late and that she failed to provide an explanation.
CONTENTIONS ON APPEAL
Complainant alleges that she timely reported the harassment to S1 as an "EEO officer" and the record includes statements of witnesses who confirmed that Complainant told S1 of her concerns as early as June 8, 2010.
In response, the Agency states that, even if Complainant reported the behavior to the Officer-In-Charge (S1) in the summer of 2010, that does not relieve her of her duty to initiate EEO counseling with the Civilian EEO Office.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a) requests that an aggrieved person must contact an EEO Counselor within 45 days of the matter alleged to be discriminatory. EEOC regulation 29 C.F.R. �1614.107(a)(2) requires an agency to dismiss a complaint that fails to comply with the applicable time limits.
EEOC Regulations provide that an agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and despite due diligence was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission. The EEOC Regulation at �1614.604(c) provides that the time limits are subject to waiver, estoppel and equitable tolling.
When a complainant claims that a physical condition prevents her from meeting a particular filing deadline, we have held that in order to justify an untimely filing, a complainant must be so incapacitated by the condition as to render her physically unable to make a timely filing. See Camacho v., Department of Defense (Army & Air Force Exchange Service), EEOC Appeal No. 0120110339 (March 30, 2011). The same is true regarding claims of incapacity related to psychiatric or psychological conditions. See Crear v. United States Postal Service, EEOC Request No. 05920700 (October 29, 1992).
The record contains a letter from an Agency's Therapist indicating that Complainant was suffering from severe debilitating distress. This supports Complainant's contention that, during the applicable period, she was so incapacitated as to prevent her from timely contacting an EEO Counselor. Moreover, the record contains statements from witnesses who confirm that Complainant did make attempts to raise her EEO concerns as early as the summer of 2010, on several occasions and the witnesses had seen Complainant "in emotional distress due to thee encounters with [the alleged harasser]".
The record discloses that the alleged discrimination ceased in December of 2011. For purposes of our analysis, therefore, we will consider the period of alleged discrimination to be from June of 2009 to December 31, 2010. Witnesses confirm that Complainant worked at the Clinic at least until April 4, 2011. The record indicates that the Agency transferred Complainant, which reinforced the fear of retaliation.
The burden is on the Agency to show that Complainant was aware of the discrimination and that her EEO contact was untimely. The Agency did not meet that burden. The record does not show that Complainant was on notice. We note that Complainant alleged discrimination that began as early as June of 2009. The Agency's EEO training did not occur until 2010. In addition, the record indicates that the poster was in the main building; and the record does not show the specific location in the clinic where the posters were placed.
Further, the Agency provided Complainant with her notice of her right to file a complaint which indicates a recognition that the Agency was on notice of her claims.
Finally, EEOC Management Directive 110, Section 2-1, at footnote one, states that "the Commission consistently has held that a complainant may satisfy the criterion of EEO Counselor contact by initiating contact with any agency official logically connected with the EEO process, even if that official is not an EEO Counselor, and by exhibiting an intent to begin the EEO process." See Kinan v. Department of Defense, EEOC Request No. 05990249 (May 6, 1999).
Taken together, we find that the record presents persuasive and sufficient evidence warranting an extension of the time limit for initiating EEO contact and / or for finding that Complainant exercised due diligence in making timely EEO contact, given the circumstances of this unusual case. We find that the Agency's dismissal was improper.
CONCLUSION
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint. We REMAND the complaint to the Agency for further processing in accordance with the ORDER below.
ORDER
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 tends 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
September 18, 2012
__________________
Date
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0120122009
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122009