0520120488
05-17-2013
Theresa R. James, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Theresa R. James,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Request No. 0520120488
Appeal No. 0120120962
Agency No. ARCEHECSA11MAY02292
DENIAL
The Agency timely requested reconsideration of the decision in Theresa R. James v. Department of the Army, EEOC Appeal No. 0120120962 (April 10, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
ISSUES PRESENTED
1. Did the previous decision clearly err in considering documents in the record other than the formal complaint to determine that the gravamen of Complainant's complaint was one of hostile work environment harassment?
2. Did the previous decision clearly err in including discrete acts that occurred outside the relevant time limitation period as part of the hostile work environment claim?
BACKGROUND
Informal Complaint Process
On May 12, 2011, Complainant contacted an EEO counselor. According to the EEO counselor's report and the notice of right to file a formal complaint, Complainant alleged that her supervisor subjected her to hostile work environment harassment on the bases of race (African American) and color (black) when:
* From 2009 to the present, the supervisor frequently spoke to Complainant in an intimidating manner, such as yelling at her, pointing her finger at Complainant's face, slamming her hands on desks, and snatching paper from Complainant's hand.
* The supervisor constantly picked on Complainant and criticized the quality of her work.
* On or around July 2009, the supervisor displayed a picture on her computer monitor of President Obama and Curious George for all to see and commented, "Doesn't he look like a monkey?"
* In May 2011, the supervisor reprimanded Complainant for having her IMPAC government card suspended;
* On May 10, 2011, the supervisor emailed Complainant about her tour-of-duty hours;
* On June 28, 2011, the supervisor issued a letter of counseling for unacceptable behavior;
* For three years, Complainant has been doing the work and duties of a GS-12 employee but has been paid only at the GS-9 level. Since July 2011, the Agency still has not promoted her to a level that is commiserate with her duties.
Formal Complaint
In her formal complaint, Complainant did not write about the incidents that were raised during the informal complaint process. Instead, in her formal complaint, Complainant attached a document, describing in narrative form other incidents involving her supervisor:
* Her supervisor did not allow Complainant to work from home using a laptop, even though the supervisor had allowed Complainant's predecessor (a Hispanic female) to work at home every other week using a laptop.
* Her supervisor discontinued Complainant's compressed work schedule of nine-hour days with one day off per pay period.
* The Director of Resource Management and Complainant's supervisor never praised Complainant for her verbal skills, and the Director of Resource Management does not talk to Complainant.
In the formal complaint, she marked that she had discussed these issues with the EEO counselor, and she failed to specify what relief she was seeking.
Agency's Final Decision
Based solely on the allegations raised in the attached document to the formal complaint, the Agency characterized Complainant's discrimination claims as whether the Agency discriminated against Complainant on the bases of race (African American), sex (female) and age when:
a. On or around April 2011, Complainant's supervisor denied Complainant's request to telework from home and to take her laptop home to catch up on work;
b. The supervisor denied Complainant permission to work nine-hour days with one day off;
c. On an unspecified date, the Director of Resource Management and Complainant's supervisor did not praise Complainant and did not speak or talk to Complainant.
The Agency dismissed claims (a) and (b) for untimely EEO counselor contact. For claim (a), the Agency assumed that this incident occurred on April 30, 2011 and that Complainant did not raise this claim until she filed her formal complaint on August 12, 2011. For claim (b), the Agency reasoned that Complainant failed to articulate the specific date on which her work schedule had been changed.
The Agency dismissed claim (c) for failure to state a claim, since a failure to receive praise or a failure of a higher-level official to speak with Complainant did not render Complainant an aggrieved employee.
Previous Decision
Upon review of the entire record, the Commission determined that the Agency erred in dismissing the complaint. "A fair reading of the matters identified in those claims reflect that Complainant claims that she was subjected to a series of related harassing incidents from 2007 through the present."
The previous decision determined that claims (a) and (b) in the formal complaint were sufficiently related to the other portions of the harassment claim to be considered as part of that claim. And since some of the incidents comprising the hostile work environment claim occurred within the 45-day time period preceding Complainant's May 12, 2011 EEO counselor contact, the previous decision concluded that the Agency improperly dismissed claims (a) and (b) of the formal complaint for untimely EEO counselor contact.
As for claim (c), the Commission found that the Agency improperly fragmented this allegation of unwelcome conduct from Complainant's overall claim of ongoing discriminatory hostile work environment harassment. Therefore, the Commission determined that the Agency had erred in dismissing claim (c) for failure to state a claim.
The Commission reversed the Agency's final decision dismissing Complainant's formal complaint, and remanded the hostile work environment/harassment claim for further processing.
CONTENTIONS ON REQUEST FOR RECONSIDERATION
In its request for reconsideration, the Agency's central argument is that claims (a) and (b) in Complainant's formal complaint were discrete acts, which Complainant failed to raise to the EEO counselor within the 45-day time period. Whether these discrete acts were related to the harassing issues previously raised to the EEO counselor does not determine whether Complainant timely alleged these discrete acts. Under National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002, the Supreme Court held that an employee may not recover for discrete discriminatory acts that fall outside the limitation period, even if they are related to acts that occurred within the time period. Therefore, the Agency maintains that Complainant may not use issues that may have been timely, but were not raised in her formal complaint, to make timely, otherwise time-barred discrete acts that were raised in the formal complaint.
ANALYSIS
A reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to deny the request.
Determining the Claim
At the outset, we note that the previous decision did not clearly err in examining other documents in the record to determine the gravamen of Complainant's complaint. There have been numerous examples where the Commission has considered other documents in the record, such as the EEO counselor's report and the nature of the relief sought, to discern the essential nature of the claims raised by complainants. See, e.g., Garrity v. US Government Printing Office, EEOC Appeal No. 0120103292 (Feb. 23, 2012) (finding it permissible to consider the contents of the EEO Counselor's report and the nature of the relief sought to determine the gravamen of the formal complaint, when the nature of the claim was not clearly expressed in the formal complaint); Mason v. U.S. Postal Serv., EEOC Appeal No. 0120130627 (Apr. 26, 2013) (finding that a fair reading of the record reflected that the matter identified was part of a harassment claim).
Here, Complainant did not clearly express the nature of her claim in her formal complaint. She left blank the sections in the formal complaint asking her to specify the relief she was seeking and to list potential witnesses. She indicated that she had discussed the issues in the attached document with an EEO counselor. It was therefore appropriate for the Commission in the previous decision to consider other documents in the record, such as the EEO counselor's report and the notice of right to file a formal complaint, to discern the nature of the complaint.
Indeed, a fair reading of the entire record shows that Complainant intended to raise a claim of hostile work environment harassment on the bases of race (African American), color (black), sex (female), and age. And we determine that the alleged incidents of unwelcome conduct comprising the hostile work environment claim include:
1. From 2007 to the present, the supervisor frequently spoke to Complainant in an intimidating manner, such as yelling at her, point her finger at Complainant's face, slamming her hands on desks, and snatching paper from Complainant's hand.
2. The Director of Resource Management and Complainant's supervisor never praised Complainant for her verbal skills, and the Director of Resource Management does not talk to Complainant.
3. The Agency has paid her at a lower salary than what she ought to receive, given that she is performing the work duties of a person at the GS-12 level.
4. The supervisor constantly picked on Complainant and criticized the quality of her work.
5. On an unspecified date, the supervisor did not allow Complainant to have a laptop or work from home, even though the supervisor had allowed Complainant's predecessor (a Hispanic female) to work at home every other week using a laptop;1
6. On an unspecified date, the supervisor discontinued Complainant's compressed work schedule of nine-hour days with one day off per pay period;
7. On or around July 2009, the supervisor displayed a picture on her computer monitor of President Obama and Curious George for all to see and commented, "Doesn't he look like a monkey?"
8. In May 2011, the supervisor reprimanded Complainant for having her IMPAC government card suspended;
9. On May 10, 2011, the supervisor emailed Complainant about her tour-of-duty hours;
10. On June 28, 2011, the supervisor issued a letter of counseling for unacceptable behavior.
Discrete Acts as Part of a Hostile Work Environment Claim
In asserting that untimely discrete acts raised by Complainant should not be a part of this hostile work environment claim, the Agency misapplies National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). It is true that under Morgan, a discrete act is independently actionable only if it occurred with the applicable time limitation period. A discrete act that occurred before the relevant time limitation period is untimely even if it is related to other actions that are timely.
But what the Agency crucially misses is that even untimely discrete acts can be used as background evidence in support of timely actions. Generally for hostile work environment claims, all of the incidents that make up the same hostile work environment claim are actionable as long as at least one incident occurred within the time limitation period. This includes any incidents that an employee suspected were discriminatory before the time limitation period.
A discrete act that occurred outside the time limitation period may be part of a hostile work environment claim, in that the discrete act may be considered in determining whether the alleged harassment was sufficiently severe or pervasive to be actionable, and the appropriate relief for the hostile work environment. What is not available to the complainant is relief for the discrete act itself because the untimely discrete act is not separately actionable.2
Here, because the incidents that make up Complainant's hostile work environment claim "collectively constitute one 'unlawful employment practice," the entire claim is actionable because at least one incident that is part of the claim (the May and June 2011 incidents) occurred within 45 days of EEO counselor contact. Therefore, even if the discrete acts that are part of this hostile work environment claim are not independently actionable because they were not timely raised, the only consequence is that the complainant cannot be entitled to relief for the discrete acts themselves. But those discrete acts are still part of the timely raised hostile work environment claim and can be considered in determining whether the harassment was sufficiently severe or pervasive and the appropriate remedy for the hostile work environment.
CONCLUSION
Because the Commission finds that the Agency's request for reconsideration fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120120962 will remain the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the ORDER as set forth below.
ORDER (E0610)
The Agency is ordered to process the remanded hostile work environment/harassment claim as defined on pages 5 and 6 of this decision 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.
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
___5/17/13_______________
Date
1 Although the Agency characterized this claim as occurring sometime in April 2011, Complainant never specifies that this event occurred in that month in her formal complaint.
2 EEOC Compliance Manual, EEOC Number 915.003, Section 2: Threshold Issues, section 2-IV.C, available at http://www.eeoc.gov/policy/docs/threshold.html#2-IV-C; Questions and Answers: Issuance of Revision to EEOC Compliance Manual Section on Threshold Issues, available at http://www.eeoc.gov/policy/docs/thresholdrevision-qanda.html
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0520120488
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520120488