0120070323
02-27-2007
Brigitta Bruehl-St.Armand, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Brigitta Bruehl-St.Armand,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120070323
Agency No. 9POJ06029
DECISION
Complainant timely filed an appeal with this Commission from a final
agency decision, dated August 21, 2006,1 dismissing her formal 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 Commission accepts the appeal in accordance with 29 C.F.R. �
1614.405.
On June 1, 2006, complainant initiated contact with an agency EEO
Counselor. Informal efforts to resolve complainant's concerns were
unsuccessful. On or about August 22, 2006, complainant filed the
instant formal complaint.
In its final decision, the agency determined that complainant claimed
that she was the victim of unlawful employment discrimination on the
basis of sex, as identified by the following five allegations:
(a) on November 7, 2004, complainant was allegedly sexually harassed
by her first-level supervisor during a conference in Orlando, Florida
[when he made sexual remarks and put his arm around her];
(b) during the week of March 16-19, 2005, at a conference in San
Francisco, California, complainant was allegedly sexually harassed by
her first-level supervisor [when he twice asked her to sleep with him];
(c) complainant experienced non-sexual harassment from her first-level
supervisor from May 18, 2005 until approximately January 20, 2006 [on
appeal, complainant said this conduct included: withholding valuable
information from her, issuing her a letter of reprimand in May 2005,
giving her a performance appraisal in October 2005 which she did not
believe reflected her performance, accusing her of not doing her job upon
her return from surgery in October 2005, and denying her a pay increase
in November 2005];
(d) on May 24, 2006, complainant became aware that her former first-level
supervisor allegedly told her replacement2 that she "did not do things
correctly... that's why things are the way they are" referring to the
Randolph AFB fitness center; and
(e) in March/April 2006, complainant became aware that her former
first-level supervisor allegedly told a former co-worker that he could
not give the co-worker a pay increase because of the way complainant
had hired her.
The agency dismissed allegations (a) - (c) on the grounds of untimely EEO
Counselor contact. The agency determined that complainant's June 1, 2006
contact was more than forty-five days after the alleged events. The agency
also dismissed allegation (c) on the alternative grounds that the matter
raised therein was not brought to the attention of an EEO Counselor.
Finally, the agency dismissed allegations (d) and (e) for failure to
state a claim. The agency noted that these comments unaccompanied by a
concrete agency action against complainant were not sufficient to render
her an aggrieved individual.
On appeal, complainant argues that her formal complaint is solely
comprised of one claim of sexual harassment, and that the agency
has inappropriately fragmented the claim. Complainant argues that
her sexual harassment claim began when she refused her supervisor's
purported advances in March 2005, and continued through May 24, 2006.
Complainant argues further that the May 2006 incident was simply the
most recent occurrence, and that she timely contacted the EEO office
approximately one week later.
Regarding allegation (c), complainant asserts that it is part of her
sexual harassment claim and that the agency erred when it labeled it as
"non-sexual," and that these alleged events were taken against her by
the supervisor because she had refused his sexual advances. Further,
complainant contends that the matter identified in allegation (c)
was raised with the EEO Counselor, citing the EEO Counselor Report's
summary section.
Regarding allegations (d) and (e), complainant reiterates that the
incidents were not intended to stand alone, but rather were the most
recent incidents of the pattern of harassment. According to complainant,
these more recent events cause her entire claim of harassment to be
timely raised.
In response, the agency argues that complainant contacted an EEO
Counselor on June 1, 2006, regarding an event that occurred in November
2004 (allegation (a)), March 2005 (allegation (b)), and a series of
events occurring between May 2005 and January 2006 (allegation (c)).
The agency argues that in allegation (c), complainant claimed that
her supervisor withheld valuable information, issued her a letter of
reprimand, downgraded her annual performance rating, accused her of not
doing her job, and denied her a pay increase. The agency acknowledges
that with respect to the alternative dismissal grounds of not raising this
claim with an EEO Counselor, this claim "should not have been dismissed
in its entirety because complainant did raise . . . her pay increase
[with an EEO Counselor]." However, the agency nonetheless asserts that
allegation (c) was properly dismissed in its entirety on the grounds of
untimely EEO Counselor contact.
Regarding allegations (d) and (e), the agency disputes complainant's
claim that the events are part of a single action. According to the
agency, allegations (a) - (c) are distinct from (d) and (e). The agency
requests that the Commission affirm its dismissal of the complaint.
As an initial matter, the Commission is persuaded by complainant's
argument that allegations (a), (b), (c) and (d) were improperly fragmented
by the agency, and together comprise one claim of sexual harassment.
Allegations (a) and (b) concern alleged unwelcome sexual conduct on
the part of the supervisor, and allegation (c) is a series of adverse
actions allegedly taken by the same supervisor against complainant for
refusing the sexual advances described in (a) and (b). In allegation
(d), complainant appears to assert that the supervisor continued to try
to ruin her reputation at the agency (where she was seeking reemployment
at another facility) by criticizing her actions to her replacement,
again because she had refused his sexual advances.
By contrast, in allegation (e), complainant has failed to establish how
the denial of a pay increase to another employee impacted on her own
employment and, therefore, its dismissal for failure to state a claim
is affirmed.
With regard to the agency's dismissal of the sexual harassment claim for
untimely EEO counselor contact, EEOC Regulation 29 C.F.R. � 1614.105(a)(1)
requires that complaints of discrimination 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.
However, a hostile work environment/harassment claim is comprised of
a series of separate acts that collectively constitute one unlawful
employment practice. National Railroad Passenger Corporation v. Morgan,
Jr., 536 U.S. 101, 117 (2002). Unlike a claim which is based on discrete
acts of discrimination, a hostile work environment claim is based upon
the cumulative effect of individual acts that may not themselves be
actionable. Id. at 115. Here, all the individual acts in allegations
(a) - (d) against the complainant were allegedly perpetrated by same
management official and were sufficiently frequent and similar in nature
to tie them together into one hostile work environment claim.
A hostile work environment claim will not be time barred if all acts
constituting the claim are part of the same unlawful practice even if some
component acts of hostile work environment fall outside the statutory
time period so long as an act contributing to the claim falls within
the filing period. Id. at 117. The incident which the FAD defined as
allegation (d) is part of the hostile work environment claim and occurred
on May 24, 2006. Complainant initiated EEO counseling a week later, on
June 1, 2006, rendering her entire hostile work environment/harassment
claim timely.
Accordingly, the FAD is REVERSED and the complainant's complaint is
REMANDED in accordance with the order below.
ORDER
The agency is ordered to process the remanded harassment/hostile work
environment claim (incorporating allegations (a) - (d)) in accordance
with 29 C.F.R. � 1614.108 et seq. The agency shall acknowledge to the
complainant that it has received the remanded claim 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
February 27, 2007
__________________
Date
01 & 07 Procedural Case Code Sheet - INTERNAL CIRCULATION ONLY
Initials Date TO: Carlton M. Hadden, Director, Office
of Federal Operations Hilda Rodriguez, Director, Appellate
Review Programs FROM: Ingrid L. Dietsch Field, Attorney 2/23/07
Joel Cavicchia, Supervisor Catherine McNamara, Division
Director Appeal Number(s) 0120070323 Agency Number(s) 9POJ06029
Hearing Number(s) Complainant(s): Brigitta Bruehl-St.Armand Agency:
Air Force Decision: AFFIRMED Statute(s) Alleged Title VII Basis(es)
Alleged GF - Sex/F Issue(s) Alleged H1 and S4 (Where Discrimination Is
Found Only): (A) Basis(es) For Finding: (B) Issues In Finding
(Check All Applicable Codes) Procedural Codes X 3K - Procedural
Decision
? 3N - Appeal Denied/Dismissed
? 3P - Adverse Inference
X 4H - OFO Affirmed FAD
? 3M - OFO Reversed and Remanded
? 4J - OFO Modified FAD
? 3L - OFO Vacated/Remanded ALL of
Agency's Merits Decision
? 4Q - Compliance required ? 3B - FAD Rescinded
? 3C - Duplicate Docket Number
? 3D - Withdrawal
? 3E - Complaint Settled
? 3G - Other Letter Closure
? 3R - Return to Agency for Consolidation
? 3S - Return to AJ for Consolidation
? 7N - Civil Action Filed Merits Settlement Codes ? 4A - Merits
decision
? 4R - OFO found settlement breach
? 4S - OFO found no settlement breach
? 4E - Agency found settlement breach
? 4F - Agency found no settlement breach
? 4H - OFO affirmed agency
? 4I - OFO reversed agency
? 4J - OFO modified agency (NOTE: if affirmed
In part and reversed in part, then (3L)
Code required if at least one issue is
remanded) ? 3L - OFO remanded PART of the agency's
merits decision (NOTE: If breach is
basis, use of 3L also requires 4I code)
? 3P - Adverse inference
? 4Q - Compliance required
Revised 6/22/05
ARP Companion Case Checklist
Complainant Agency Appeal/Request/Petition No. Brigitta Bruehl-St.Armand
Air Force 0120070323
OPEN CASES
Appeal No. ORADS Status Related (Yes/No) Actions Taken No other open
cases
CLOSED CASES
Appeal No. ORADS Status Related (Yes/No) Actions Taken none
Ingrid L. Dietsch Field 2/23/07
Attorney Date
1 On appeal, the agency acknowledges that its final decision was
inadvertently dated August 21, 2006, instead of September 21, 2006.
2 Complainant apparently resigned from her position as Director of the
Fitness Center at Randolph Air Force Base, Texas at the end of May 2006,
and was seeking re-employment as the Director of the Fitness Center at
Patrick Air Force Base, Florida.
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0120070323
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120070323
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0120070323