01993851
05-30-2001
Billie Y. Ball, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army Agency.
Billie Y. Ball v. Department of the Army
01993851
05-30-01
.
Billie Y. Ball,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army
Agency.
Appeal No. 01993851
Agency No. F-0109-KY-A-01-99-RGO
DECISION
Complainant filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision (FAD) dated
January 8, 1999, which was mailed to her on March 2, 1999, concerning
her complaint of unlawful employment discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq. (Supp. 1994 & Supp. IV 1999) (Title VII). The appeal
was postmarked March 31, 1999. Accordingly, the appeal is timely filed
pursuant to 29 C.F.R. � 1614.402(a), and is accepted in accordance with
29 C.F.R. �1614.405.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint on the basis that it was untimely filed.
BACKGROUND
Complainant initiated EEO counselor contact on September 2, 1998.
On November 3, 1998, complainant filed a formal complaint alleging
that she was continually harassed and subjected to a hostile working
environment because of her race (African American), sex (female), and
reprisal (prior EEO activity)<1> when:
On or about April 1997, she was denied an on the spot award because it
was too soon after her first EEO complaint;
On or about November 1997, the alleged Responsible Official reported
complainant as being absent without leave (AWOL), when she had actually
been temporarily reassigned; this caused complainant a six month delay
in getting the pay that she was docked;
On or about March 15, 1998, the alleged Responsible Official directed
her supervisors to write her up for cutting a lock when the keys for
a forklift could not be found;
On October 7, 1998, complainant was given a notice of adverse action
and was sent home indefinitely with pay; and was anonymously mailed a
copy of a letter posted on the walls of her work site indicating that
she was a threat to the work environment;
In September 1998, she received a letter of reprimand ordered by
the alleged Responsible Official for allegedly making a threatening
statement to a fellow employee; and the alleged Responsible Official
made a threatening statement to her the next day;
Her orders for Active Training were changed by the alleged Responsible
Official from fly to G.S.A. to P.O.V. and;
On an ongoing basis, co-workers who where supposed to assist her in a
high stress work area did not help and were not made to do so.
In a FAD dated January 8, 1999, the agency dismissed complainant's
complaint in its entirety. The agency dismissed claims 1 and 3 on the
basis that complainant failed to timely file her formal complaint. Claim
2 was dismissed as it involved a military complaint of discrimination;
and claim 4 was dismissed because it was not brought to the attention
of an EEO counselor, and was not like or related to issues or matters
that had been brought to the attention of the EEO Counselor. The FAD
did not address claims 5-7.
The National Guard Bureau Directorate for Equal Employment Opportunity
(NGBD) reviewed the dismissal of complainant's complaint and determined
that the original dismissal was deficient. The NGBD then issued a
memo to the State Equal Employment Manager indicating that it found
that complainant had actually raised claim 4 in a second pre-complaint
counseling contact on a separate complaint of discrimination (NGB
Case No. T-149) before she included it in the formal complaint at
issue in this case, and that claim 4 was therefore timely and would be
consolidated for investigation with NGB Case No. T-149. The records
indicated that complainant was provided a copy of the memo, but does
not indicate that complainant was given any appeal rights; however,
complainant had already appealed to the Commission from the prior total
dismissal of her complaint.
FINDINGS AND ANALYSIS
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment" is created if a reasonable person would find [it]
hostile or abusive, and the complainant subjectively perceives it as
such. Harris, supra at 21-22. Here, complainant alleged several instances
of harassment including being denied an on the spot award because it was
allegedly too soon after her prior EEO complaint, and being written up
for cutting a lock when the keys for a forklift could not be found.
We find that the agency failed to properly define the subject complaint,
and improperly fragmented and dismissed the above-mentioned claims.
A review of the record indicated that the agency dismissed claims 1
and 3 on the basis that complainant failed to timely file her formal
complaint. However, the record reflects that complainant was issued her
Notice of Final Interview on October 22, 1998, and as such, her formal
complaint would not have been due until November 6, 1998. Further,
on December 11, 1998, the agency sent complainant a letter indicating
that it received her formal complaint on November 3, 1998. The record
also shows that the FAD failed to address claims 5-7 in complainant's
complaint. The agency's failure to address these allegations raised
in a complaint is tantamount to an improper dismissal by the agency. See
Kapp v. Department of the Navy, EEOC Request No. 05940662 (January, 23,
1995). In another instance, claim 4 was initially dismissed because it
was not brought to the attention of an EEO counselor, and was not like
or related to issues or matters that had been brought to the attention
of an EEO counselor. On April 1, 1999, the NDBG modified the dismissal
letter and accepted this claim for investigation. The agency dismissed
claim 2 as a military claim of discrimination. We find that this claim
was properly dismissed as it involved complainant's military service
and not her civilian duties. Similarly, we find that claim 6, though
not addressed by the agency, should be dismissed as it also involved a
military claim of discrimination. See Brazill v. National Guard Bureau,
EEOC Request No. 01891698 (June 22, 1989).
Complainant alleged that the incidents identified in her complaint were
part of an ongoing pattern of harassment, which created a hostile work
environment. The Commission has previously held that an agency should not
ignore the "pattern aspect" of a complainant's allegations and define the
issues in a piecemeal manner where an analogous theme unites the matters
complained of. See Meany v. Department of the Treasury, EEOC Request
No. 05940169 (November 3, 1994); see also Equal Employment Opportunity
Management Directive for 29 C.F.R. � 1614, ch. 2, sec. 5 (November 9,
1999). When analyzing harassment claims to determine whether they state a
claim, the Commission requires that all incidents be considered together,
and in a light most favorable to complainant. See Cobb v. Department of
the Treasury, EEOC Request No. 05970077 (March 13, 1997). By its nature,
a hostile environment claim must set out conduct that is either severe or
pervasive enough to create an environment that a reasonable person would
find hostile or abusive. See Harris, supra at 22. So long as at least
one of the incidents occurred within 45 days of the initial contact,
the claim will be considered timely filed. See Treschitta v. Department
of Transportation, EEOC Request 05990600 (January 13, 2000). In the
present case, complainant clearly alleges a pattern of harassment by one
individual, from April 1997 through October 1997. Moreover, claim 4 as
discussed above, was considered timely and accepted for investigation by
the agency. We find that the agency improperly fragmented complainant's
complaint. Therefore, we ORDER the agency to consolidate this complaint
with her other complaints and investigate her complaint as an overall
claim of harassment.<2>
CONCLUSION
The agency decision to dismissed claim 2, involving complainant's military
service, is AFFIRMED. The agency's decision to dismiss claims 1, 3,
5 and 7 was improper and is REVERSED. These claims are REMANDED to the
agency for further processing in accordance with the ORDER below.
ORDER
1) The agency is ORDERED to notify complainant within fifteen (15)
calendar days of the date this decision becomes final that her complaints
(Complaint Nos. F-0109-KY-A-01-99-RGO and NGB Case No. T-0149, and other
like or related complaints to the extent that are still currently being
processed by the agency) are being consolidated for further processing
in accordance with 29 C.F.R. � 1614.606;
2) 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.
3) A copy of the agency's notice of consolidation (to the extent
feasible), 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 (K0900)
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)(Supp. V 1993). 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 (M0900)
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 (Q0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing 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
___05-30-01_______________
Date
1Pursuant to a settlement agreement, complainant did not disclose the
statutory basis for her prior EEO complaint.
2In her statement on appeal, complainant noted that she only filed
one complaint which was then made into several smaller complaints,
which then resulted in her having duplicitive counseling sessions,
and being told that her complaint paperwork was �all messed up�.
Complainant's statements are substantiated in the record where it is
evident that several of complainant's allegations were not addressed in
the final agency decision.