0120080359
04-08-2008
Joyce V. Green, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Department of Defense Education Activity), Agency.
Joyce V. Green,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Department of Defense Education Activity),
Agency.
Appeal No. 0120080359
Agency No. EU-FY07-034
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated September 21, 2007, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
During the relevant period, complainant was employed as a Teacher
at an agency middle school located in Germany. On March 18, 2006,
complainant initiated contact with an EEO Counselor alleging that the
agency subjected her to hostile work environment harassment on the bases
of race (African-American), disability (Blind - Macular Degeneration), age
(over 40), and reprisal for prior protected EEO activity. To support her
claim of harassment, complainant alleged that the former school principal
(S1) and/or the current principal (S2) issued her a five-day suspension
based on false allegations; took adverse actions to isolate her from
her coworkers and students' parents; denied her reasonable accommodation
by instructing her assistive reader (R1) to stop performing her duties;
solicited R1 to monitor complainant's classroom activities and provide
negative statements about complainant; monitored and kept written records
regarding complainant's arrivals, departures, and actions; denied
complainant due process when they issued her discipline; encouraged
coworkers to treat her with disrespect; and acted adversely so as to
provoke her to retire or resign. Complainant added that the Department
Director and Assistant Director condoned the hostile work environment.
In October 2006, complainant alleged further that (1) between August
2001 and November 2005, an EEO Specialist misinformed complainant
about her right to Assistive Technology by pretending to be the agency
Disability Manager/Counselor for Europe, (2) in January 2006, S1 and S2
placed complainant on a five-day suspension, (3) in May 2006, S1 denied
complainant reasonable accommodation and time-out from a confrontational
meeting, which resulted in complainant's need for medical treatment
and use of sick leave, (4) since August 2006, S2 collaborated with
three assistive readers to deny complainant reasonable accommodation and
prevent complainant from performing the responsibilities and duties of her
teaching position and (5) in September 2006, S1 and S2 issued complainant
a letter of suspension for ten days based on falsified documents that
should have been removed from her official personnel file and inaccurate
statements from R1. Complainant filed a formal complaint dated February
16, 2007 containing her harassment claim. Subsequently, complainant
amended her claim to allege that the agency discriminated against her
when, on May 25, 2007, it removed her from Federal employment.
Complainant filed an appeal with the Merit Systems Protection Board
(MSPB) regarding her removal, which was identified as docket number
DC-0752-07-0736-I-1. In an Initial Decision dated October 18, 2007,
the MSPB dismissed complainant's removal appeal stating that the parties
entered into an oral settlement agreement on October 4, 2007, that was
later memorialized.
In its September 21, 2007 final decision, the agency vacated a partial
dismissal decision that it issued on June 27, 2007 and then dismissed
complainant's harassment claim pursuant to 29 C.F.R. � 1614.107(a)(4).
The agency stated that complainant asked to have her removal claim
consolidated with her harassment claim, and the removal claim renders the
harassment claim inextricably intertwined and a mixed matter, which she
elected to pursue in the MSPB process. Complainant filed the instant
appeal. On appeal, complainant stated that her harassment claim does
not constitute a mixed case matter and that she did not present the
harassment claim to the MSPB.
The Commission finds that the agency improperly dismissed complainant's
hostile work environment claim for being inextricably intertwined with the
appeal she filed with the MSPB regarding her removal from the agency.
The record contains a copy of an MSPB Initial Decision dismissing
complainant's removal action only based on execution of a settlement
agreement on October 4, 2007. In the instant matter, we find that the
agency erred when it found that the instant hostile work environment
harassment claim was not within the jurisdiction of the Commission because
the harassing incidents preceded her removal. The agency failed to take
note of Equal Employment Opportunity Commission Management Bulletin, 100-1
(October 24, 2003), which requires the deletion of Section II.B.4.d. of
Chapter 4 of the Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110) (1999), including footnote 4.
Management Bulletin 100-1 explains that although this section in MD-110
was designed to reduce the fragmentation of EEO complaints on related
matters that were pending before both the EEOC and the MSPB, the section
(which recommended dismissing the related matters from the EEO process
and sending them to the MSPB to be consolidated with the matter on
appeal there) constituted "a request for an MSPB Judge to hear matters
which may not be within the jurisdiction of the MSPB." Therefore,
the Management Bulletin 100-1 deleted this section of MD-110. Thus,
we find that the Commission has jurisdiction over complainant's hostile
work environment claim, which encompasses incidents that preceded the
agency's termination of complainant's employment. Accordingly, we REVERSE
the final agency decision dismissing complainant's harassment claim and
REMAND the harassment claim to the agency for processing consistent with
this decision and the Order below.
ORDER
The agency is ordered to process the remanded hostile work environment
harassment claim 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 (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
April 8, 2008
__________________
Date
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0120080359
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120080359