Barbara E. Cooper, Complainant,v.Norman Y. Mineta, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionMar 21, 2006
01a60148 (E.E.O.C. Mar. 21, 2006)

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