01a45897
05-02-2005
Valerie J. Sanders, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Valerie J. Sanders v. Department of the Army
01A45897
May 2, 2005
.
Valerie J. Sanders,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A45897
Agency No. ARAPG04MAR0024
DECISION
Upon review, the Commission finds that complainant's complaint was,
in part, improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim and 29 C.F.R. � 1614.107(a)(2) for untimely
EEO Counselor contact. In her complaint, complainant alleged that she
was subjected to discrimination on the bases of race (African-American)
and disability (physical) when:
1) on or about April 2004, complainant's supervisor (S1) refused to
accept complainant's doctor's notes dated March 11 and 17, 2004;
2) on April 2004, S1 issued a verbal warning to complainant concerning
telephone abuse;
3) from December 2003 through May 7, 2004, S1 reassigned complainant's
workspace three times without explanation;
4) on October 3, 2003, S1 discussed complainant's medical condition with
complainant's coworkers; and
5) on April 21, 2003, S1 assigned complainant duties in violation of
her medical profile.
On July 16, 2004, the agency issued a final decision. Therein, the agency
dismissed (1) - (3) pursuant to 29 C.F.R. � 1614.107(a)(1), finding that
the complainant failed to state a claim because she had not shown harm
to a term, condition, or privilege of employment. 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, � 1614.106(a).
The agency also dismissed (4) - (5) of the instant complaint pursuant to
29 C.F.R. � 1614.107(a)(2), finding that the complainant did not initiate
contact with an EEO Counselor until March 4, 2004, which is beyond the
forty-five (45) day limitation period. The regulation set forth at 29
C.F.R. � 1614.107(a)(2) provides, in relevant part, that an agency shall
dismiss a complaint that fails to comply with the applicable time limits
contained in 29 C.F.R. � 1614.105(a)(1) which requires that complaints
of discrimination 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.
On appeal, complainant cites additional incidents that she alleges
occurred because of her race and disability. Complainant further
contends that these continuing acts amount to harassment and hostile
work environment. In response, the agency restates the position it took
in its FAD, and requests that we affirm its final order.
At the outset, we note that the agency dealt with each claim in a
piecemeal manner, and therefore, allowed complainant's claim of harassment
to be fragmented. The agency should not ignore the "pattern aspect"
of the claims and define them in a piecemeal manner where an analogous
theme unites the complained of. Dobbins v. Department of the Army, EEOC
Appeal No. 01A15248 (January 16, 2003) (citing Meany v. Department of
Treasury, EEOC Request No. 05940169 (November 3, 1994).
Here, the Commission finds that claims (4) and (5) share a common nexus
and theme to claim (1) and accordingly are sufficiently related to the
instant case to be deemed timely under EEOC regulations. As stated by the
Supreme Court, a complaint alleging a hostile work environment claim will
not be time barred so long as all acts which constitute the claim are part
of the same unlawful employment practice and at least one act falls within
the time period. National Railroad Passenger Corporation v. Morgan,
536 U.S. 101 (2002). Therefore, we find that with respect to claims
(1), (4) and (5), complainant has alleged facts which, if proven true,
would indicate that the complainant may have been subjected to harassment
that was sufficiently severe or pervasive to alter the conditions of
her employment. As such, complainant has shown an injury or harm to a
term, condition, or privilege of employment for which there is a remedy.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). Accordingly, we reverse the agency's dismissal with
respect to these claims.
We also find, however, that the agency properly dismissed (2) and (3),
pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
With respect to these issues, we find that complainant has not shown
that the agency's actions resulted in a harm or loss with respect to a
term, condition, or privilege of employment for which there is a remedy.
Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April
21, 1994). Further, these issues do not share a common nexus with claims
(1), (4) and (5), and, therefore, are not part of complainant's hostile
work environment claim.
Accordingly, the agency's final decision is affirmed in part and reversed
in part. Issues (1), (4) and (5) are remanded to the agency for further
processing in accordance with this decision and the order below.
ORDER (E0900)
The agency is ordered to process the remanded claims 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 (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
May 2, 2005
__________________
Date