0120110259
05-24-2012
Samiah E. Baroni, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Samiah E. Baroni,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120110259
Agency No. ARBRAGG10APR01434
DISMISSAL OF APPEAL
By Notice of Appeal postmarked October 6, 2010, Complainant filed an appeal with this Commission from the May 17, 2010 Agency decision concerning her EEO 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.
In her Notice of Appeal, Complainant indicated that she received a copy of the Agency's decision on May 29, 2010. The Agency decision discloses that the Agency properly advised Complainant that she had 30 calendar days after receipt of its final decision to file her appeal with the Commission. Accordingly, for her complaint to be timely, Complainant had to file her appeal no later than June 28, 2010.
On appeal, Complainant stated that because of an "extenuating" medical emergency she was unable to meet the deadline. She stated further that on June 6, 2010, her sister suffered a massive brain aneurysm hemorrhage, was not expected to survive, was in a coma and had to undergo surgeries. Complainant also stated that at the time that her sister suffered the brain hemorrhage, she was preparing her appeal to the Commission. She stated that she had to leave state to be with her sister and her sister's children.
In its opposition to Complainant's appeal, the Agency asserts that while the unexpected illness of Complainant's sister may have been troublesome and difficult for Complainant, Complainant failed to provide any evidence that she was so incapacitated that she was unable to meet the time requirements. The Agency also asserts that Complainant has failed to provide justification sufficient to extend the 30-day time limitation period. The Agency further argues that even if the appeal should be accepted, its dismissal of the claims of the complaint was proper.
Complainant worked as an Intelligence Analyst, Strategic Studies Section-CENTCOM with the
4th Psychological Operalions Group (Airborne) in Fort Bragg, North Carolina. In her complaint, she alleged that the Agency discriminated against her on the bases of sex (female), age (49) and reprisal for filing a sexual harassment complaint when:
1. On March 10, 2010, the Chief of the Strategics Study Section provided Complainant with an unsuccessful rating on her mid-term assessment based upon input from Complainant's Team Chief, who had allegedly subjected Complainant to sexual harassment and had discriminated against her.
2. On March 30, 2010, Complainant's Team Chief, accused Complainant of slandering his name and defaming his character and threatened to take legal action against Complainant.
3. On April 1, 2010, the Chief of the Strategics Study Section demanded to know if Complainant had informed anyone that her Team Chief had sent her pornographic material and Complainant felt battered and belittled by the Chief's demanding tone.
The Commission's regulations provide that an appeal from an Agency decision must be filed within 30 days from receipt of the decision. 29 C.F.R. � 1614.402(a). If a complainant does not file an appeal within the time limits, the appeal shall be dismissed as untimely. 29 C.F.R. � 1614.403(c). However, the Commission regulations governing computation of time limits allow for waiver or equitable tolling under 29 C.F.R. � 1614.604(c). In order to receive such a waiver, complainant must to set forth evidence to justify it.
The Commission is sympathetic toward Complainant regarding the difficulties experienced concerning her sister's illness. However, the Commission determines that she has failed to provide adequate justification to demonstrate that the events warrant a waiver or equitable tolling of the applicable time limits. Although Complainant pleads the illness of her sister, a chronology of events compiled by Complainant herself and contained in the record discloses that Complainant was not so incapacitated that she could not meet the time requirements. Even were we to accept that Complainant herself was so incapacitated by her sister's condition that she could not meet the time deadline at least for some time following her sister's condition, coma, and surgeries, Complainant's chronology and letters of commendation in the record concerning Complainant's performance disclose that Complainant was at least at work in July 2010, as evidenced by her attendance at a staff meeting on July 8, 2010, and, also that she was at work during August and September 2010. Yet, Complainant did not file until October 2010. See Crear v. U.S. Postal Service, EEOC Request No. 05920700 (Oct. 29, 1992). Bradford v. Dep't of the Air Force, EEOC Appeal No. 01A24456 (Dec. 2, 2003) (death of Complainant's father not sufficient to justify late filing absent corroborating evidence that extreme upset and mental anguish prevented timely filing); Johnson v. Small Business Admin., EEOC Appeal No. 01991283 (Jan. 9, 2002), reconsideration denied, EEOC Request No. 05A20378 (May 3, 2002) (although complainant's attorney suffered from the death of one family member and the illness of another, the request for a waiver of the time limits to file an appeal, without corroborating evidence of the grief and depression suffered, was denied).
Notwithstanding our decision, the Commission reminds the Agency that it is unlawful to discriminate or harass an employee because of that person's sex.1 Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature may constitute sexual harassment when the conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment. Employers are encouraged to take steps necessary to prevent sexual harassment from occurring and should clearly communicate to employees that sexual harassment will not be tolerated. Agencies can do so by providing sexual harassment training to their employees and by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains.
The Commission notes that in Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998), and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998), the Supreme Court made clear that employers are subject to vicarious liability for unlawful harassment by supervisors. The standard of liability set forth in these decisions is premised on two principles: 1) an employer is responsible for the acts of its supervisors, and 2) employers should be encouraged to prevent harassment and employees should be encouraged to avoid or limit the harm from harassment. While the Faragher and Ellerth decisions addressed sexual harassment, the Court's analysis drew upon standards set forth in cases involving harassment on other protected bases. Moreover, the Commission has always taken the position that the same basic standards apply to all types of prohibited harassment.
The Commission also reminds the Agency that under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter protected activity. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15; Carroll v. Dep't of the Army, EEOC Request No. 05970939 (April 4, 2000).
Finally, to the extent that Complainant may be raising any new claims occurring after the claims identified in her complaint, she has to pursue those claims, if she wishes to do so, with the Agency.
CONCLUSION
The Commission dismisses the untimely appeal. See 29 C.F.R. � 1614.403(c).
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 (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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. If you file a request to reconsider and also file a civil action, 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
05/24/2012
__________________
Date
1The record indicates that Complainant appears to have initiated EEO Counselor contact in 2009 concerning prohibited conduct based on sex that she alleged the Team Chief had engaged in towards her. It appears that mediation was pursued in this matter but that the matter did not proceed further to the complaint stage.
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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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