01a44048
11-22-2004
Amanda L. Parker-Mason, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Finance and Accounting Service), Agency.
Amanda L. Parker-Mason v. Department of Defense
01A44048
November 22, 2004
.
Amanda L. Parker-Mason,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Finance and Accounting Service),
Agency.
Appeal No. 01A44048
Agency No. DFAS-IN-TS-04-055
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision (FAD) dated May 10, 2004, 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.
On February 11, 2004, complainant initiated contact with the EEO office.
The EEO Counselor's Report reflects that complainant claimed that
she has been harassed by agency management, and that on April 11,
2003, she received a proposal to remove her from agency employment.
Informal efforts to resolve complainant's concerns were unsuccessful.
In a formal complaint filed on April 24, 2004, complainant claimed that
she was subjected to harassment in reprisal for prior protected activity.
In that portion of the complaint form requesting that complainants
identify the details of their discrimination claims, complainant stated
that she has been subjected to a continuing pattern of harassment
that included being prevented from timely returning to work status
due to scrutiny of her medical condition; improperly singling her out
for leave usage; unusual demands on her requests for time off and her
physician's documentation; violating the Privacy Act by mishandling and
disclosing sick leave usage and information on her medical condition;
impeding her performance by not providing her with training and tools;
not providing input into performance elements; not responding, or
slowly responding, to job-related issues; not allowing complainant to
schedule meetings and discussions with agency personnel; failure to
timely respond to personnel-related requests; failure to inform her, or
keep critical information about the organization from her; and sending
her on TDY trips that are not in the best interests of the government.
Complainant identified the alleged discriminatory events as commencing
in December 2002, and stated that she first became aware that she was
the victim of unlawful employment discrimination on January 7, 2004.
In its FAD dated May 10, 2004, the agency determined that the instant
complaint was comprised of the following claim:
complainant alleged that she was subjected to harassment with the most
recent incident occurring on January 7, 2004, when she received an email
message from her supervisor concerning her doctor's appointments and
her general health.
The agency dismissed the complaint on the grounds of untimely EEO
Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The agency
determined that complainant's initial EEO Counselor contact occurred on
February 11, 2004, which it found to be beyond the 45-day limitation
period. The agency further determined that in her formal complaint,
complainant claimed that she became aware of discrimination on January
7, 2004, but offered no explanation as to what occurred in January 2004
that prompted her to determine she was discriminated against dating back
to December 2002.
The agency also dismissed the instant complaint on the alternative
grounds of alleging a proposal to take a personnel action, pursuant to
29 C.F.R. � 1614.107(a)(5). The agency determined that complainant
received a Proposal to Remove from federal service dated April 11, 2003,
however, it had not taken any action to remove her from federal service.
Finally, the agency dismissed the complaint on the alternative grounds
of failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1).
The agency determined that complainant did not provide any evidence
to suggest that she suffered a personal loss or harm regarding a term,
condition, or privilege of her employment.
On appeal, complainant argues that the agency improperly dismissed her
complaint. Specifically, complainant asserts that the agency improperly
framed her claims, and basically reiterates the alleged discriminatory
events that are identified in the formal complaint, claiming that she
has been subjected to a hostile work environment since December 2002.
In the instant case, we first find that the agency misdefined
complainant's complaint. We determine that a fair reading of
pre-complaint counseling documents and complainant's formal complaint
reflects that complainant was subjected to a pattern of harassment that
commenced in December 2002, and extended through the date that she
initiated EEO counseling in February 2004. Because some of the incidents
of alleged harassment occurred within forty-five days of complainant's
initial EEO contact, we determine that complainant timely contacted
an EEO Counselor regarding all the incidents of alleged harassment.
The Commission therefore determines that the agency dismissal on the
grounds of untimely EEO contact was improper.
The Commission further determines that by claiming a pattern of
harassment, complainant has stated a cognizable claim under the EEOC
regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November
12, 1993). Accordingly, the agency dismissal of the instant complaint
on the alternative grounds of failure to state a claim was improper.<1>.
Finally, we find that the agency's dismissal of complainant's complaint on
the alternative grounds of alleging a proposal to take a personnel action
was also improper. In its final decision, the agency determined that
nothing submitted by complainant indicates �anything more than a proposal
to take action to terminate your employment.� The Commission determines,
however, that complainant's complaint encompasses a variety of matters
beyond an agency proposal to terminate his employment. Moreover, the
Commission has held the if a proposed action is combined with other acts
of harassment to form an alleged pattern of harassment, the agency may
not properly dismiss a claim as a proposed action. See Suttles v. USPS,
EEOC Request No. 05970496 (April 8, 1999); see also Charles v. Department
of the Treasury, EEOC Request No. 05910190 (February 25, 1991).
Accordingly, the agency's decision dismissing complainant's complaint is
REVERSED and the complaint, as redefined in this decision, is REMANDED
to the agency for further processing in accordance with 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
November 22, 2004
__________________
Date
1We, note, however, that to the extent
complainant is claiming a violation of the Privacy Act, this issue
would not be within the Commission's jurisdiction. The Privacy Act,
5 U.S.C. � 552(g)(1), provides an exclusive statutory framework governing
the disclosure of identifiable information contained in federal systems of
records and jurisdiction rests exclusively in the United States District
Courts for matters brought under the provisions of the Privacy Act.
Bucci v. Department of Education, EEOC Request Nos. 05890289, 05890290,
05890291 (April 12, 1989).