01992032_r
04-12-2001
Clay L. Hodges, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, (National Guard Bureau), Agency.
Clay L. Hodges v. Department of the Army
01992032
April 12, 2001
.
Clay L. Hodges,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
(National Guard Bureau),
Agency.
Appeal No. 01992032
Agency No. T-0099-KS-A-02-SO
DECISION
Complainant filed an appeal with this Commission from an agency decision
dismissing his 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. In a complaint dated November 10,
1998, complainant alleged the following:
Complainant, on the basis of his sex (male), has been the victim of
continuous sexual harassment commencing on or about December 1995, with
the most recent incident occurring during the week of August 24, 1998
through August 29, 1998, when the alleged harasser (H1) attempted to set
up a meeting through a Union Steward between herself and complainant.
Prior to this incident, complainant claims, H1 sent him cards and
letters, called his home, his friends and the bar he frequents, showed up
at his home, constantly calls him on the intercom, phones, and hand-held
radios at work, and has told him that she wants to sleep with him.
Complainant, in reprisal for prior EEO activity (unknown), has been the
victim of continuous harassment by H2 ( H1's husband), commencing on or
about May 1998; and
Complainant, in reprisal for prior EEO activity (unknown), has been the
victim of continuous harassment by the Facility Commander (H3), commencing
on or about May 1998, when H3 asked complainant if he �kissed [Person
A's] ass everyday?� and went on to say �you better keep kissing his ass,
because if it were not for that man [Person A], I would fire you.�
The Adjutant General's office issued a decision dismissing complainant's
complaint on December 28, 1998, which complainant appealed to this
Commission. Subsequently, the National Guard Bureau (NGB) also issued
a decision dismissing complainant's complaint on January 13, 1999.
The decision issued by the NGB dismissed complainant's complaint for
failure to state a claim and for untimely EEO Counselor contact.
With respect to claim 1, the NGB found that complainant's initial
EEO Counselor contact on September 14, 1998, was beyond the 45-day
limitation period. In addition, the NGB found that the incident
occurring during the week of August 24, 1998, failed to state a claim.
With respect to claims 2 and 3, the NGB found that because complainant
has not previously engaged in the EEO process and the claims are not
based on another one of his protected bases, they fail to state a claim.
Moreover, the NGB dismissed these claims for untimely EEO Counselor
contact because they found that complainant's initial EEO contact was
beyond the 45-day limitation period. The Commission finds that it is
this decision by the NGB that is at issue in this appeal.
The Commission finds that the NGB improperly dismissed these claims for
both untimely EEO Counselor contact and for failure to state a claim.
With respect to untimely EEO counselor contact, the Commission finds
that complainant's initial EEO Counselor contact on September 14, 1998,
with regard to the incident occurring during the week of August 24, 1998,
was timely. As a result, we also find that the alleged incidents of
harassment defined in claims 2 and 3 occurring prior to August 24, 1998,
are also timely, because we find these incidents set forth a continuing
violation. See Howard - Grayson v. United States Postal Service, EEOC
Request No. 05990160 (December 3, 1999). Furthermore, we find that
complainant has identified two prohibited bases for the alleged harassment
(i.e., sex and retaliation) under the laws which the Commission enforces,
and we find that these incidents are sufficiently severe and pervasive
to state a claim of hostile work environment. See Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
The Commission REVERSES the agency's decision dismissing complainant's
complaint. The complaint is REMANDED to the agency for further processing
in accordance with this decision and applicable regulations.
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 (K0900)
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)(Supp. V 1993). 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 (M0900)
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
April 12, 2001
__________________
Date