0120112528
01-06-2012
Brenda Watley, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Brenda Watley,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120112528
Agency No. AREUHEID11JAN00040
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated March 1, 2011, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Supervisory Social Worker at the Agency’s facility in Wuerttemberg,
Germany.
On February 17, 2011, Complainant filed a formal EEO complaint
alleging that the Agency subjected her to a hostile work environment
and discrimination on the basis of race (African-American) when: (a) on
January 15, 2011, her supervisor removed her name an email work group;
(b) the supervisor “evicted” Complainant from her work area and
allowed another employee to occupy it and move her personal belongings
without her knowledge; (c) on December 22, 2010, her supervisor made
her wait for two hours while conducting work in Complainant’s office;
(d) on October 29, 2010, her supervisor sent her a work directive,
which was unnecessarily copied to Human Resources staff in an attempt to
humiliate her; (e) in May 2010, Complainant received a “demotion to
the status of intake coordinator” and was directed by her supervisor
to conduct all new patient intake assessments; (f) on May 24, 2010,
a subordinate employee referred to Complainant as “a moron” without
any correction from the supervisor; and (f) in April 2010, one of her
subordinates was reassigned to another supervisor, and Complainant’s
objections about it were ignored.
Pursuant to 29 C.F.R. § 1614.107(a), the Agency dismissed the allegations
a-c for failure to state a claim, and allegations d-g for failure to
contact an EEO counselor in a timely manner. The Agency noted that even
viewing the complaint as a whole, the complaint failed to state a claim
of harassment or hostile work environment.
The instant appeal followed.1 In her appeal, Complainant states she
initially chose not to file a complaint in an effort to have a good
working relationship with her supervisor. Complainant states that she
was treated very differently from her two white colleagues, and the
incidents were humiliating to her.
ANALYSIS AND FINDINGS
Timeliness
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Agency dismissed allegations d-g as untimely raised as they occurred
well beyond the 45-day limitation period from Complainant’s initial
January 7, 2011 EEO counselor contact. However, 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). In this case, Complainant has asserted that all her allegations
were part of an ongoing hostile work environment claim involving the
same supervisor. Accordingly, we find that the Agency’s dismissal of
allegations d-g on timeliness grounds was incorrect.
Failure to State a Claim
Under the regulations set forth at 29 C.F.R. Part 1614, an agency
shall accept a complaint from an aggrieved employee or applicant for
employment who believes that he or she has been discriminated against by
that agency because of race, color, religion, sex, national origin, age or
disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's
federal sector case precedent has long defined an "aggrieved employee"
as one who suffers a present harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy.
Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (April
21, 1994). If complainant cannot establish that s/he is aggrieved,
the agency shall dismiss a complaint for failure to state a claim.
The Commission has held that where, as here, a complaint does not
challenge an agency action or inaction regarding a specific term,
condition, or privilege of employment, the claim of harassment may
survive if it alleges conduct that is sufficiently severe or pervasive
to alter the conditions of the complainant’s employment. See Harris
v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). The Commission
finds that Complainant’s allegations, viewed in their entirety, may
be sufficiently severe or pervasive to state a viable claim of a hostile
work environment. Therefore, Complainant is entitled to an investigation
and further processing of her hostile work environment claim.
Accordingly, the Agency’s final decision dismissing the complaint
is REVERSED and the complaint is REMANDED for further processing in
accordance with the following Order.
ORDER (E0610)
The Agency is ordered to process the remanded claim (hostile work
environment) in accordance with 29 C.F.R. § 1614.108 et seq. 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 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 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
January 6, 2012
__________________
Date
1 The instant appeal was filed on a form which contained the
Commission’s old address. The Agency is advised to discontinue use of
documents which contain the outdated address.
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0120112528
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112528