Katherine E. Montgomery, Complainant,v.Ray H. LaHood, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionJan 24, 2012
0120113892 (E.E.O.C. Jan. 24, 2012)

0120113892

01-24-2012

Katherine E. Montgomery, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.




Katherine E. Montgomery,

Complainant,

v.

Ray H. LaHood,

Secretary,

Department of Transportation,

Agency.

Appeal No. 0120113892

Agency No. 2011-00044-RITA-02

DECISION

Complainant filed a timely appeal with this Commission from the Agency's

decision dated July 6, 2011, 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. and

the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant

worked as the Chief Financial Officer at the Agency’s Research and

Innovative Technology Administration in Washington, D.C. On February

24, 2011, Complainant contacted the EEO Counselor regarding her claim of

discrimination. On June 7, 2011, Complainant filed a formal complaint

alleging that the Agency subjected her to discrimination on the bases

of race (African-American), sex (female), age (62), and reprisal (for

prior EEO activity) when she was subjected to a hostile work environment.

Complainant indicated that she alleged that Agency’s Administrator has

subjected her to harassment by treating her in a demeaning, threatening,

abusive, rude, damaging and humiliating manner from June 2009 through

February 2011. During that timeframe, Complainant also asserted that

the Administrator did not upgrade her position to the SES level in

June 2009, made threatening phone calls when he was on travel, rewrote

Complainant’s position description, rated Complainant in December

2010 as “meets expectations,” and had alterations with Complainant.

Complainant claimed that the Administrator wanted to get rid of her in

order to replace her with younger and smarter people.

The Agency dismissed Complainant’s claim of harassment pursuant to

29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The Agency

reviewed Complainant’s claim of harassment solely looking at the

events Complainant raised involving alleged demeaning, threatening

or abusive behavior by the Administrator. The Agency then dismissed

Complainant’s claim for the denial of an upgrade to the SES and her

performance appraisal pursuant to 29 C.F.R. § 1614.107(a)(2) finding

that Complainant failed to bring these claims to the EEO Counselor in

a timely manner. This appeal followed.

ANALYSIS AND FINDINGS

The Commission notes that the Agency dismissed two events raised

by Complainant in support of her claim of harassment pursuant to 29

C.F.R. §1614.107(a)(2). EEOC Regulation 29 C.F.R. §1614.107(a)(2)

states that the agency shall dismiss a complaint or a portion of a

complaint that fails to comply with the applicable time limits contained

in §1614.105, §1614.106 and §1614.204(c), unless the agency extends

the time limits in accordance with §1614.604(c).

EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved

person must initiate contact with an EEO Counselor within 45 days of

the date of the matter alleged to be discriminatory or, in the case of

a personnel action, within 45 days of the effective date of the action.

EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the agency or the

Commission to extend the time limit if the complainant can establish that

complainant was not aware of the time limit, that complainant did not

know and reasonably should not have known that the discriminatory matter

or personnel action occurred, that despite due diligence complainant

was prevented by circumstances beyond her control from contacting the

EEO Counselor within the time limit, or for other reasons considered

sufficient by the agency or Commission.

We note that the Supreme Court of the United States 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 Nat’l R.R. 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. The Court defined such

“discrete discriminatory acts” to include acts such as termination,

failure to promote, denial of transfer, or refusal to hire, acts that

constitute separate actionable unlawful employment practices. Id.

Finally, the Court held that such untimely discrete acts may be used

as background evidence in support of a timely claim. Id. Therefore,

although Complainant did not raise the denial of the upgrade or the

performance appraisal in a timely manner, these events can still be

considered as part of Complainant’s claim of harassment.

The Commission now turns to the Agency’s dismissal of Complainant’s

claim of harassment pursuant to 29 C.F.R. §1614.107(a)(1).

The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint that fails to

state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R. §§

1614.103, .106(a). The Commission's federal sector case precedent has

long defined an "aggrieved employee" as one who suffers a present harm

or loss with respect to a term, condition, or privilege of employment

for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC

Request No. 05931049 (Apr. 21, 1994).

The Commission has held that where, as here, a complaint does not

challenge an agency action or inaction regarding a specific term,

condition, or privilege of employment, the claim of harassment may

survive if it alleges conduct that is sufficiently severe or pervasive

to alter the conditions of the complainant’s employment. See Harris

v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). In her complaint,

Complainant alleged a series of events which allegedly occurred from June

2009 through February 2011. Specifically, Complainant alleged that she

was subjected to harassment which created a hostile work environment.

Instead of treating these events as incidents of the claim of harassment,

however, the Agency separated two events and looked at them individually.

Thus, we find that the Agency acted improperly by treating matters raised

in Complainant’s complaint in a piecemeal manner. See Meaney v. Dep’t

of the Treasury, EEOC Request No. 05940169 (Nov. 3, 1994) (an agency

should not ignore the "pattern aspect" of a complainant’s claims and

define the issues in a piecemeal manner where an analogous theme unites

the matter complained of). Consequently, when Complainant’s claims

are viewed in the context of Complainant’s complaint of harassment,

they state a claim and the Agency’s dismissal of those claims for

failure to state a claim was improper.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we VACATE the

Agency’s final decision and REMAND the matter for further processing

in accordance with the ORDER below.

ORDER (E0610)

The Agency is ordered to process the remanded claim of harassment 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 (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

January 24, 2012

__________________

Date

2

0120113892

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120113892