0120121151
05-24-2012
Elena E. Graves, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Agricultural Research Service), Agency.
Elena E. Graves,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Agricultural Research Service),
Agency.
Appeal No. 0120121151
Agency No. ARS-2011-00798
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated December 6, 2011, dismissing a 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.
BACKGROUND
During the period at issue, Complainant worked as a Chemist, GS-1320-11/10 at the Agency's Southern Regional Research Center in New Orleans, Louisiana.
On July 6, 2011, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On September 21, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected her to discrimination on the basis of sex when:
1. in October 2008, her supervisor (S1) moved her out of her laboratory to provide the space to a temporary male employee and provided no assistance in identifying a new space for her;
2. in October 2008, S1 attempted to reduce her job duties to that of a lower grade level, temporary position;
3. on some unspecified dates in late 2008 or spring 2009, she was moved out of her space to remain vacant for about 2 years;
4. in June 13, 2011, S1 advised her that effective October 1, 2011, she would be assigned to perform the duties of a position for which she applied for 2 years prior, but for which a male candidate had been selected; and
5. for an unspecified period of time, S1 engaged in various acts of disparate treatment, including but not limited to:
a. on various dates, he included male support scientists in project meetings to discuss their work;
b. on unspecified dates, he encouraged and allowed male support scientists to travel and present their research;
c. on various dates, he allocated more unit funds to male employees, including monies for research equipment;
d. on various dates, he issued male scientists personal digital assistants; and
e. on unspecified dates, he hired seven male employees to permanent positions but did not have any females to the same such positions.
In its December 6, 2011 final decision, the Agency dismissed claims 1 - 3 on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on July 6, 2011, which was beyond the 45-day limitation period. The Agency dismissed claim 4 pursuant to 29 C.F.R. � 1614.107(a)(5), for alleging discrimination concerning a preliminary step to taking a personnel action. Specifically, the Agency determined that Complainant was only told that her duties would change at a future date.
The Agency dismissed claim 5 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Specifically, the Agency found that unless the conduct is severe, a single incident or group of isolated incidents will not state a claim of discriminatory harassment.
ANALYSIS AND FINDINGS
Claim 5
We first address whether the Agency properly framed Complainant's claims. The record reflects that the Agency analyzed Complainant's allegations as discrete acts. However, based on the factual allegations set forth in the instant formal complaint and the evidence in the record, the Commission finds that claim 5 should have been viewed in the context of stating a variety of alleged incidents of harassment and the creation of a hostile work environment.
The Agency improperly dismissed claim 5 for failure to state a claim. Complainant alleged that since October 2008, S1 treated her differently from male employees by providing male employees support; allowed them to travel and do their research; allocated funds to them for research equipment; and issued them personal digital assistants. We note in her formal complaint and the EEO Counselor's report, Complainant requested that S1 treat her fairly in the same manner as male employees, that she not be moved to another laboratory or her area of work changed again, and compensatory damages. These matters, when considered in conjunction with the other claims addressed below, state an actionable claim of harassment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
Claims 1 - 3
The Agency also improperly dismissed claims 1 - 3 on the grounds of untimely EEO Counselor contact. The record reflects that Complainant initiated EEO Counselor contact on July 6, 2011. The Commission has held that "[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence." EEOC Compliance Manual, Section 2, Threshold Issues at 2 - 75 (revised July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)).
The record reflects that various incidents comprising Complainant's harassment/hostile work environment claim occurred within the 45-day time period preceding Complainant's July 6, 2011 EEO Counselor contact, as discussed above in claim 5. Because a fair reading of the record reflects that the matter identified in claims 1 - 3 is part of that harassment claim, we find that the Agency improperly dismissed claims 1 - 3 on the grounds of untimely EEO Counselor contact.
Claim 4
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides, in part, that the Agency shall dismiss a complaint that alleges a proposal to take personnel action, or other preliminary step to taking a personnel action, is discriminatory. In the instant case, Complainant alleged that S1 informed her that effective October 1, 2011, she would be assigned to perform the duties of a position for which she applied for 2 years prior, but for which a male candidate had been selected. She has not been assigned to the subject position. Proposed actions do not create a direct and personal deprivation which would make a complainant an "aggrieved" employee within the meaning of the EEO regulations. See Charles v. Department of the Treasury, EEOC Request No. 05910190 (February 25, 1991). However, where, as here, a proposed action is purportedly combined with other acts of harassment to form an alleged pattern of harassment, an agency may not properly dismiss it as a proposed action. See Suttles v. USPS, EEOC Request No. 05970496 (April 8, 1999). As claim 4 is part of Complainant's overall harassment claim, we determine that the Agency's dismissal of this claim was improper.
Accordingly, we REVERSE the Agency's dismissal of the instant formal complaint, defined herein as a harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims (harassment/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
May 24, 2012
__________________
Date
2
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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