0120171091
05-03-2017
Larae S.,1 Complainant, v. Robert M. Speer, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Larae S.,1
Complainant,
v.
Robert M. Speer,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120171091
Agency No. ARMIAMI16FEB00849
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 22, 2016, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Lead Security Guard at the Agency's U.S. Army Garrison facility in Miami, Florida.
On February 18, 2016, Complainant made EEO contact. On April 29, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment and discrimination on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII during the period July 14, 2013 to March 26, 2015. She claimed:
1. Complainant's supervisor and upper management unjustly retaliated against her;
2. Complainant was subjected to heightened scrutiny and "a sleuth of subsequent events surrounding [her] performance and questioned [on her] every action within the department;"
3. She was subjected to micro-management, which the male employees did not suffer;
4. She was overlooked for promotions and promotional opportunities that were provided to a male employee with less seniority than Complainant;
5. Management denied her requests for annual leave and for a shift change; and
6. Complainant's direct supervisor and other management officials subjected Complainant to sexual harassment in the form of unwelcome sexual advances and verbal and physical harassment of a sexual nature through offensive remarks from her direct supervisor.
In her current complaint, she identified the alleged responsible management officials by name and identified the location where the alleged discrimination occurred. She also provided the Agency with a witness statement, attesting to the fact that a witness observed and heard one of the incidents of inappropriate behavior directed at Complainant by Complainant's immediate supervisor.
The record shows that Complainant filed a prior complaint on May 11, 2015. She alleges in this subject complaint that, subsequent to the filing of her May 11, 2015 complaint, she was subjected to eight additional incidents, including a disciplinary action, false accusations, micromanagement, issuance of a negative civilian performance evaluation and ongoing harassment.
She requested a meeting on January 27, 2016, to raise her new claims and she received no response. She made formal EEO contact on this complaint on February 18, 2016. The Agency then requested that Complainant provide additional information. After receiving an extension to file her clarification, on June 6, 2016, Complainant provided a response in the form of "clarifications" to buttress her complaint. Complainant submitted her supplemental statement and followed up three times in June of 2016. The record before us shows that she also submitted a sexual harassment complaint, dated June 6, 2016.This was included in the record of the subject complaint, which is referenced as dated April 29, 2016 and/ or April 30, 2016. On December 16, 2016, Complainant sent an email requesting the status of her formal complaint, which she referenced as filed on February 18, 2016.
The Agency Decision
The Agency dismissed the complaint for failure to state a claim and for failure to make timely contact with an EEO counselor, without providing any elaboration.2
This appeal followed.
CONTENTIONS ON APPEAL
Complainant was provided an extension to March 30, 2017, to file a brief in support of her appeal. As of April 26, 2017, our records do not show that Complainant filed a brief. We note that the Agency was given an extension until May 1, 2017, to file a response to any brief that Complainant filed.
On April 17, 2017, the Agency issued an amended acceptance letter. The amended acceptance letter was not a final decision and was conditioned on the issuance of a final decision by the Army Director of EEO or designee. The Agency provided the Union representative with a copy of the notice. There is no indication that Complainant was provided a copy of the amended Acceptance Letter.
The record before us does not show that Complainant or her representative requested to withdraw or close this appeal. Therefore, we provide this analysis and decision based upon our review of the record.
ANALYSIS AND FINDINGS
Untimely EEO Contact
The Agency dismissed the complaint, in part, for untimely EEO counseling. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action.
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 Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (June 10, 2002). In this case, the record shows that Complainant is alleging that she has been subjected to an ongoing pattern of discriminatory and retaliatory and sexual harassment that has taken many forms including subjecting her to a negative performance evaluation, blaming her for employee time and attendance not being recorded correctly, denying her leave requests and requests to change her tour of duty, requiring her to work on light duty even though she was cleared by her physician and the department's doctor to work, not offering her promotional opportunities, subjecting her to harsher standards and sexual harassment. In this case, Complainant's EEO counselor contact was timely made from some of the events she proffers as examples of the alleged ongoing harassment/hostile work environment.
In addition, we note that, subsequent to the filing of this appeal, the Agency issued an amended, albeit conditional, letter of acceptance. The acceptance included the claims that occurred subsequent to her EEO contact in this matter or which were alleged in her earlier EEO complaint. For the record on appeal, we reiterate the Agency's Acceptance Letter dated April 17, 2017, which stated that 'I have accepted your clients claim above for investigation. In your / your client's formal complaint of discrimination, you / your client alleged discrimination on the bases of sex (female) and reprisal (Prior EEO Activity 11 May 2015) and subjected to a hostile work environment by your client's supervisor," when:
1. On October 31, 2015, Complainant received a negative civilian performance evaluation;
2. On May 13, 2015, during her midpoint counseling LT [named official] said to the Complainant "I have no use for you, I putting you out on the gates;"
3. On May 13, 2015, LT [named official] said about not helping the Complainant with leave "When other supervisor need help you do not volunteer,"
4. On May 7, 2015, LT [named official] yelled at her for being Late for SHARP training and wrote on her evaluation that her tardiness was a normal occurrence;
5. On May 7, 2015, June 14, 2014 and June 26, 2014, Complainant requested Automated Time, Attendance, and Production System (ATAAPS) training and management denied her requests causing her to be blamed for employee time and attendance not being recorded correctly and employees not getting paid;
6. On April 2, 2015, Management denied the Complainant's leave request for May 19 and 20, 2015;
7. On February 12, 2015 and January 22, 2015, Management required Complainant to work on light duty even though she was cleared by her physician and the department's doctor;
8. In May of 2011, management did not offer the Complainant a temporary Lieutenant position in the DES. The named management official said he did not offer the complainant the Lieutenant position as she was not ready for the job
9. On July 29, 2009, Complainant's supervisor Complainant's direct supervisor subjected Complainant to sexual harassment in the form of unwelcome sexual advances and offensive remarks in front of Complainant and in the presence of her Complainant's nephew; and
10. On an unknown date, Complainant's supervisor at roll call questioned Complainant about posting someone on Holiday - Gate #1, but another named management official generated the schedule. Then the named management official reprimanded the Complainant.
Since the Agency accepted the claims, we find that the Agency failed to meet its burden of establishing that Complainant's complaint should be dismissed for reasons of being untimely.
Failure to State a Claim
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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, 1614.106(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 (April 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
The Commission has held that 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).
The gist of her claim is that the Agency tolerated a hostile work environment and failed to make its actions free of discrimination, as mandated by Section 717 of Title VII. She noted that she was subjected to disciplinary actions that were unjustified and for which she already had been exonerated, held to different standards, and her supervisor allegedly subjected her to offensive remarks, denied her requests for leave and a change of tour, and subjected her to more scrutiny, micro-management and denied promotional opportunities. She also provided a witness statement, dated May 25, 2016, attesting to the observed sexual harassment. We find that Complainant's allegations are sufficient to state a claim of sex discrimination and a retaliatory hostile work environment.
Moreover, the record includes a time line of the alleged discriminatory incidents and the many steps she took in an attempt to get the Agency to process her EEO complaints, without success. We find that Complainant has shown an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Upon review, the Commission finds that Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
CONCLUSION
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint. We REMAND the complaint to the Agency for further processing in accordance with this decision and the Order below.
ORDER
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The remanded claims, as amended, include the ten claims identified and accepted by the Agency and the five claims paraphrased by the Commission in the statement of the issues. We include, and incorporate by reference, the claims identified in the Agency's April 17, 2017 Acceptance Letter - Amended which the Agency conditionally accepted for investigation. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. 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 was issued, 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 (M0416)
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 tends 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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
May 3, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 On April 17, 2017, the Agency sent the Union representative an Amended Acceptance Letter. It informed the Union representative that "the agency has decided to accept your clients' complaint" dated "29 April 2016 and dismissed on 22 December 2016." The letter of acceptance references ten claims of discrimination that covered the period July 29, 2009 to October 31, 2015. The amended acceptance letter states that the complaint will be assigned to an investigatory for formal investigation of the accepted claims. The Agency letter stated that the amended acceptance was "conditioned upon a final decision by the Army Director of EEO or designee."
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