01A34550_r
01-23-2004
Lucille Core, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Lucille Core v. Department of the Army
01A34550
January 23, 2004
.
Lucille Core,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A34550
Agency No. ARWRAMC03MAY0007
DECISION
Complainant filed an appeal with this Commission from a July 2, 2003
agency decision, dismissing her complaint pursuant to 29 C.F.R. �
1614.107(a)(2), for untimely EEO Counselor contact. The agency defined
the complaint as whether complainant was subjected to discrimination on
the basis of sex (female) when she was sexually harassed from September
2001 to April 2002.
The record reveals that complainant contacted the agency's EEO office on
May 29, 2003, alleging that from September 2001 until her termination by
the agency on April 12, 2002, she was sexually harassed by Supervisor
A and threatened with termination if she did not engage in sexual
acts with him. By letter dated June 18, 2003, the EEO Counselor ended
informal counseling and issued complainant a notice of right to file a
formal complaint. On June 30, 2003, complainant submitted to the agency,
through counsel, what she entitled as �Amendment to Formal Complaint
of Discrimination.�<1> In the purported amendment, complainant alleged
that she was discriminated against based on sex, when she was sexually
harassed from the time of her hiring to her removal by Supervisor A,
her second level supervisor. She also alleged that Supervisor A
threatened her with termination if she did not engage in sexual acts
with him and that she was terminated because she refused to have sex.
The record also reveals that complainant had previously filed a complaint
(Agency No. BGANFP10204C0500), dated August 12, 2002, in which she
alleged that she was terminated by the agency on April 12, 2002, on
the basis of her disability. In a letter dated June 30, 2003, the
agency informed complainant's counsel that the investigation in Agency
No. BGANFP10204C0500 was complete and counsel was provided with a copy
of the investigative report. The June 30, 2003 letter also informed
complainant that she had to request either a hearing before an EEOC
Administrative Judge (AJ) or a final agency decision and that she had
to do so within 30 days. Complainant requested a hearing in Agency
No. BGANFP10204C0500 on or about July 29, 2003, two days after she filed
her appeal of the agency's July 2, 2003 dismissal in the present matter.
Complainant's hearing request was docketed as Hearing No. 100-2003-08304X
and is pending before an AJ.<2>
EEOC Regulation at 29 C.F.R. � 1614.106(d) states that a complainant may
amend a complaint at any time prior to the conclusion of the investigation
to include issues or claims that are like or related to those raised
in the complaint. A later claim or complaint is "like or related"
to the original complaint if the later claim or complaint adds to or
clarifies the original complaint and could have reasonably been expected
to grow out of the original complaint during the investigation. See Scher
v. United States Postal Service, EEOC Request No. 05940702 (May 30, 1995).
There is no requirement that the amendment be subject to counseling.
We find that what complainant is alleging in the present matter is not
simply that she was sexually harassed, as defined in the agency's July 2,
2003 dismissal, but that she was sexually harassed by Supervisor A who
threatened her with termination if she refused to engage in sexual acts
with him and, also, that she was terminated as a result of her refusal
to do so. Accordingly, the allegation raised by complainant is like
or related to her complaint in Agency No. BGANFP10204C0500 in which
she alleged discriminatory termination. By improperly treating the
allegation as a separate complaint rather than as an amendment to the
complaint in Agency No. BGANFP10204C0500, the agency erred in dismissing
the claim on the grounds of untimely EEO Counselor contact.
Having found that the matter on appeal is not a separate claim but is an
amendment to the complaint in Agency No. BGANFP10204C0500, the Commission
determines that the amendment is a matter more appropriately considered
by the AJ before whom the complaint regarding her termination is pending
as Hearing No. 100-2003-08304X.
Accordingly, the agency's dismissal of the complaint is VACATED and the
matter is REMANDED to the agency for further processing in accordance
with the Order below.
ORDER
The agency is ORDERED to take the following action:
Within 15 calendar days of the date this decision becomes final, the
agency shall notify in writing the EEOC Administrative Judge conducting
the hearing in Hearing No. 100-2003-08304X (Agency No. BGANFP10204C0500)
of complainant's desire to amend BGANFP10204C0500. The notice shall
be accompanied by the complete agency record in the instant matter.
A copy of the notice shall be sent to complainant.
A copy of the agency's notice shall be sent to the Compliance Officer
as referenced herein.
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
January 23, 2004
__________________
Date
1Complainant indicated in the purported
amendment that she was amending Agency No. ARWRAMC02MAY0025. In a
letter on appeal dated August 22, 2003, complainant stated that Case
No. ARWRAMC02MAY0025 was in investigation and dealt with discrimination
on the basis of �handicap/failure to allow reasonable accommodation.� No
complaint so identified exists in the record and the agency has indicated
that ARWRAMC02MAY0025 is an erroneous agency number and the case number
is assigned to another complainant.
2The Commission notes that the AJ's September 23, 2003 acknowledgment
of complainant's request for hearing identifies the original complaint
as Agency No. BGANFP10202C0500 and not as Agency No. BGANFP10204C0500,
as reflected in the agency's June 30, 2003 letter notifying complainant
of the completion of the investigation.