01a60148
03-21-2006
Barbara E. Cooper, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Barbara E. Cooper,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A60148
Agency No. 200519039FAA03
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 18, 2005, 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. For the
reasons provided below, we hereby AFFIRM the agency's decision in part
and REVERSE and REMAND the decision in part.
Background
In her complaint, complainant alleged that she was subjected to
discrimination on the bases of sex (female) and reprisal for prior
protected EEO activity under an EEO statute that was unspecified in the
record when:
1. In early 2002, the Operations Manager (OM), told complainant that
if she had filed a sexual harassment claim in 1990/1991, he would
not have been removed and that the ascent of women and Blacks into
managerial/leadership positions within the FAA, was ruining the agency;
2. Circa July or August 2002, OM told complainant that a Certified
Professional Controller (CPC) would be certified despite complainant's
belief that the CPC should not be certified;
3. In late August 2002, complainant told OM that she could no longer
work for him and would like to return to an Operations Supervisor's
(OS) position, and he immediately had the paperwork cut that returned
complainant to the OS position effective the first day of the following
pay period;
4. In September 2002, OM called complainant into his office and told her
that her request for one hour annual leave at the beginning of her shift
was inappropriate behavior, that he held supervisors to a higher standard,
and that he did not like to hear that the Controller's perception was
that complainant was working "dial-a-shift";
5. In mid October, 2002, OM told complainant he was going to change her
Regular Day Off;
6. On October 28, 2002, after complainant wrote a letter to OM describing
several outbursts by a coworker, OM suggested that there must have been
an underlying problem that complainant had with the coworker and asked
complainant what had she done to him in the past to cause him to react
this way with her;
7. In early November 2002, OM told complainant that her recent use of
sick leave was unacceptable and that supervisors were held to a higher
standard;
8. Shortly after this, OM told complainant that another employee had
filed a hostile work environment letter against her and complainant was
told to limit her conversation with this employee;
9. In mid-November 2002, OM called complainant at home and told her he
wanted to move her off day from December 15,2002, to January 12, 2003;
10. In February 2003, OM made complainant look bad in front of a
subordinate;
11. A few days later, after complainant told OM that she wanted to quit
being a supervisor and return to the bargaining unit, he responded that
he would make it effective the first day of the next pay period;
12. In November 2003, after complainant returned to work, she was told
that she had been medically restricted and need a medical certificate
to return to work;
13. In May 2004, OM came in early that morning and paged complainant
and her supervisor;
14. In August 2004 complainant returned to work after three weeks of
sick leave without being medically restricted;
15. In September 2004, OM said that since complainant was sick all the
tune, she should think about applying for a medical retirement;
16. The next day, complainant was threatened with a leave restriction;
17. In October 2004, complainant was medically restricted and was required
to get documentation from her doctors to get reinstated; and
18. In November 2004, complainant was again medically restricted and
required to get a statement from her doctors.
The agency dismissed issues 1 through 17 on the grounds of untimely
EEO Counselor contact, finding that complainant first contacted an EEO
Counselor on December 10, 2004, which is beyond the 45-day limit for
all of the issues except issue 18. Regarding issue 18, the agency found
that complainant failed to state a claim. On appeal, complainant argues
that the agency erred in dismissing issues 1 through 17 because she is
alleging a continuing violation and these issues are therefore timely.
Analysis and Finding
The Supreme Court has 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 National Railroad Passenger Corp. v. Morgan,
122 S. Ct. 2061 (June 10, 2002). A fair reading of the EEO complaint
in this case indicates that complainant was raising a single claim of
discriminatory/retaliatory harassment, allegedly committed by the same
management officials, and resulting in a hostile work environment.
As evidence in support of this claim, complainant enumerated in her
complaint a series of eighteen events that occurred between early 2002
and November 2004. The agency improperly considered each of these
proffered examples of the alleged harassment separately, dismissing
incidents 1-17 as untimely raised. As noted above, this piece-meal
adjudication was improper because the incidents that make up a hostile
work environment claim collectively constitute one single unlawful
employment practice. Id. In fact, the very nature of hostile work
environment claims involve repeated conduct that occurs over a series
of days, months or even years. Id. Complainant sought EEO counseling
on her harassment claim within the regulatory timeframe from incident
18, rendering her entire hostile work environment claim timely raised.
While the agency also dismissed incident 18 on the grounds of failure to
state a claim, the Commission finds that when this incident is considered
with the other incidents proffered by complainant in support of her claim,
she has stated a viable hostile work environment claim.
Accordingly, we reverse the agency's decision to dismiss the complaint
in this matter and remand complainant's hostile work environment claim
for processing in accordance with the Order set forth below.
ORDER (E0900)
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 (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
March 21, 2006
__________________
Date
2
01A60148
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036