0120093252
01-13-2010
Connie J. Castleberry, Complainant, v. Stephen Chu, Secretary, Department of Energy, Agency.
Connie J. Castleberry,
Complainant,
v.
Stephen Chu,
Secretary,
Department of Energy,
Agency.
Appeal No. 0120093252
Agency No. 080089RL
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 1, 2009, 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. In her
complaint, complainant alleged that she was subjected to discrimination
on the basis of sex (female) when she was subjected to a hostile work
environment when a Management Official (MO: male):
1. made comments about complainant's appearance;
2. told complainant that he wanted to see her having sex with other men;
3. kissed, touched, fondled and exposed himself to complainant;
4. asked complainant to meet him outside the office for sexual
encounters;
5. masturbated twice in complainant's presence and showed complainant
pornography in his office;
6. asked to come to complainant's home and wanted to watch complainant
having sex with other men. after he agreed to cease conversations of a
sexual nature; and
7. called complainant and asked to meet her in a parking lot.
The agency conducted a full investigation, but then dismissed the
claim, finding that complainant's EEO Counselor contact was untimely for
incidents 1 through 6 and further finding that incident 7 was not part of
the same unlawful practice as the prior 6 incidents. The agency further
found that incident 7, when viewed alone, was insufficiently severe to
state a claim of harassment. On appeal, the agency argues that incident
7 was not part of the same unlawful practice because MO did not ask
complainant to meet in the parking lot in order to sexually harass her.
Instead, the agency argues, MO had recently found that he was the subject
of another sexual harassment complaint filed by another employee, and
when he asked to meet complainant in the parking lot he wanted to tell
her "that he was going to be asked questions and if [complainant] heard
anything not to worry because she was in no way involved in the situation
and did not need to worry about their past relationship being discovered."
Agency's Appeal Brief, p. 3. On appeal, complainant argues that MO's
request to meet complainant in the parking is part of the same unlawful
practice as the other 6 incidents because "all prior meetings of this
type had involved incidents of sexual harassment." Complainant's Appeal
Brief, p. 5.
Following a review of the record the Commission finds that the agency
erred in dismissing the complaint. A review of the record shows that
earlier incidents of alleged sexual harassment by MO occurred when MO and
complainant met up the in parking lots of a Shilo Inn and a Fred Meyer.
See Formal Complaint. Furthermore when asked why complainant felt
that MO's request to meet her in the parking lot constituted sexual
harassment, complainant averred that "My previous contacts with [MO]
were all of a sexual nature. I had no reason to believe his request to
meet with me would be for any other purpose." Report of Investigation
(ROI), Complainant's Affidavit Tab F1, p. 10. We note that incident
7 involved the same management official as the other incidents, in very
similar circumstances. Accordingly, the Commission finds that complainant
has established that incident 7 is part of the same unlawful practice
as the previous 6 incidents. Furthermore, since incident 7 occurred
on January 31, 2008 and the record shows complainant contacted an EEO
Counselor on February 11, 2008, we find that complainant's counselor
contact was timely.
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). 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.
Finally, the Court held that such untimely discrete acts may be used as
background evidence in support of a timely claim. Id.
Because we find that incident 7 falls within the filing period and is
part of the same unlawful practice, we find that the entire complaint
is timely. Accordingly, the FAD is REVERSED and the complaint is REMANDED
to the agency for additional processing1.
ORDER
The agency shall issue to complainant a copy of the investigative file and
also shall notify complainant of the appropriate rights within thirty (30)
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 (K1208)
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 (M1208)
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 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 (R0408)
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 (Z1008)
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 13, 2010
__________________
Date
1 We note that the agency has already conducted an investigation.
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0120093252
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093252