0120152361
11-03-2015
Beatriz L.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Department of Defense Education Activity), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Beatriz L.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.
Appeal No. 0120152361
Agency No. PF-FY-15-051
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 5, 2015, 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Assistant Principal at the Agency's Sollars Elementary School facility in the Japan District.
On March 2, 2015, Complainant contacted the EEO Counselor. Complainants indicated in an email to the EEO Counselor that she had been suspended and was informed that she could not have contact with Agency officials. She also indicated that she had been subjected to harassment which has resulted in her becoming ill. The EEO Counselor sent Complainant the EEO documents for her review and signature. Her representative (Representative)2 also emailed the EEO Counselor asserting that Complainant was "incapacitated." The EEO Counselor attempted to meet with Complainant and the Representative. However, the Representative noted Complainant's medical condition and asked that Complainant be issued her Notice of Right to File a Formal Complaint.
On May 4, 2015, the EEO Counselor issued Complainant a Notice of Right to File a Formal Complaint. On May 6, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Not Specified), sex (female), age (over 40), disability, and reprisal for her prior EEO complaint when she was subjected to harassment since 2012. In support of her claim, Complainant alleged that the following events occurred:
1. On April 28, 2015, Complainant was constructively discharged when she was forced to resign due to the harassment;
2. The Principal made comments regarding Complainant's alleged personality flaws and lack of intelligence. She isolated, yelled at, mocked, and micromanaged Complainant.
3. Complainant was denied upward mobility;
4. The Principal denied Complainant's leave request to attend medical appointments;
5. Complainant's leave requests under the Family Medical Leave Act (FMLA) were denied.
6. Complainant's request for reasonable accommodation was denied;
7. Adverse information was placed in Complainant's personnel file;
8. Complainant was suspended for five days; and
9. On August 25, 2014, Complainant was reassigned from the Korean District to her assistant principal position in the Japan District.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2) for failing to bring for these issues before an EEO Counselor. The Agency noted that on March 6, 2015, the EEO Counselor sent Complainant and the Representative information and forms regarding the EEO complaint process and asked that the materials be returned signed by March 10, 2015. The same day, the Representative stated that the forms would be completed. On March 16, 2015, when the forms were not returned, Complainant contacted the EEO Counselor about gathering information for the Counselor to review. The EEO Counselor informed Complainant that she needed to engage in counseling or the matter may be dismissed. The Representative emailed back stating that Complainant was having a medical emergency and that she will be unavailable. The next day, Complainant contacted the EEO Counselor asking for an extension for counseling. On March 23, 2015, the EEO Counselor attempted to contact Complainant. The Representative stated that Complainant was incapacitated, on FMLA leave, and would not be providing anything more. In April, the Representative provided signed documents and the EEO Counselor provided Complainant with her Notice of Right to File a Formal Complaint. The Agency found that the EEO Counselor attempted to provide the required counseling, but Complainant failed to provide anything but her vague claims. The Agency found that Counselor was unable to engage in the informal process due to Complainant's failure to respond. As such, the Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2). In addition, the Agency found that event (9) was raised with the EEO Counselor outside of the 45 day time limit. As such, the Agency also dismissed that claim pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact.
This appeal followed. On appeal, Complainant provided copies of the email exchanges she had with the EEO Counselor. Complainant asked that the matter be remanded. The Agency responded asserting that the Representative has a law degree and is well aware of the regulations despite presenting himself as a non-attorney representative. Further, the Agency asserted that this is not the only time the Representative has argued that another employee was incapacitated in another EEO matter. The Agency asserted that the Commission should not be misled by the Representative.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R � 1614.107(a)(2) provides that the Agency shall dismiss a complaint that raises a matter that has not been brought to the attention of a Counselor and is not like or related to a matter that has been brought to the attention of a Counselor. A review of the record indicates that Complainant and the Representative did not meet with the EEO Counselor. However, a review of the emails and the EEO Counselor's report show that Complainant informed the EEO Counselor that she had been subjected to harassment which had resulted in a medical emergency. Furthermore, Complainant noted that she was suspended and that during her suspension, she was instructed not to speak with Agency officials who she believed included the EEO Counselor. The EEO Counselor also listed the same nine events in her report as noted in the Agency's final decision. As such, we find that the EEO Counselor was made aware of Complainant's claim of harassment since 2012 including the suspension. Furthermore, the events listed by Complainant are all like or related to this claim of harassment. Therefore, we find that the dismissal of the complaint as a whole pursuant to 29 C.F.R � 1614.107(a)(2) was not appropriate.
The Agency also dismissed event (9) finding that Complainant failed to raise the matter with the EEO Counselor in a timely manner. EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the agency extends the time limits in accordance with �1614.604(c). EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action.
We note that the Supreme Court of the United States 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 Nat'l R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. The Court defined such "discrete discriminatory acts" to include acts such as termination, failure to promote, denial of transfer, or refusal to hire, acts that constitute separate actionable unlawful employment practices. Id. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id. Here, Complainant has alleged a claim of harassment which she included events that were timely raised. As such, we find that the dismissal of event (9) was not appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMANDS the matter for further processing in accordance with the ORDER below.
ORDER (E0610)
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 (M0815)
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, 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 (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
November 3, 2015
__________________
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 The record indicates that Complainant's representative has a law degree but is no longer barred.
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