0120162475
01-05-2017
Charlyn P.,1 Complainant, v. Gina McCarthy, Administrator, Environmental Protection Agency, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Charlyn P.,1
Complainant,
v.
Gina McCarthy,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120162475
Agency No. 2015-0094-R05
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 22, 2016, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Law Clerk at the Agency's facility in Chicago, Illinois.
On July 29, 2015, Complainant contacted the EEO Counselor alleging unlawful discrimination and harassment. When the matter could not be resolved informally, the Agency issued Complainant a Notice of Right to File a formal complaint. On September 11, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. In early February 2015, Complainant's team leader (Team Leader) called Complainant into his office and complained that she spent too much time at the U.S. Attorney's Office and consulting with the U.S. Attorney.
2. In March 2015, the Team Leader insisted that Complainant begin sending him email messages at the beginning of each week advising him on where she would be and what work she would be doing that week.
3. On March 18, 2015, the Regional Criminal Enforcement Counsel (Counsel) informed Complainant that he had a conversation with the Team Leader wherein the Team Leader stated "But I want [Complainant] working HERE," and responded to the Counsel's comments about Complainant's work location by saying, "You don't worry about that. That's between [Complainant], me (Team Leader), and [Complainant's supervisor (Supervisor)]."
4. On April 7, 2015, the Supervisor sent an email to the Counsel indicating that "maxiflex" time sheets should be submitted to the Team Leader.
5. In April 2015, Complainant had a telephone conversation with the Team Leader during which he told her that the new office policy was that the Agency's employees could only work two days in an "alternative work station," and Complainant working at the U.S. Attorney's office in Chicago was considered an "alternative work station," which meant that, if she worked two days at the U.S. Attorney's Office, she had to be at the facility for the other three days of the week.
6. On or about June 16, 2015, Complainant learned from the Counsel that on or about June 15, 2015, Special-Agent-in-Charge (SAC) committed acts of sexual harassment against a female coworker (Co-worker) while allegedly intoxicated and the Counsel reported the incident to Acting SAC who attempted to conceal the incident.
The Agency dismissed claim (6) for failure to state a claim pursuant 29 C.F.R. � 1614.107(a)(1). The Agency noted that the claim raised in event (6) involved an act of sexual harassment against the Co-worker by the SAC and the action by the Acting SAC to cover up the incident. Complainant asserted that she was "re-traumatized" by causing her to "relive" an incident she experienced in 2014. The Agency noted that the actions involved in claim (6) did not include Complainant and that there was no indication that the actions by the SAC directly impacted or were taken against Complainant. As such, the Agency held that Complainant failed to show that she was harmed by the event raised in claim (6). Therefore, the Agency dismissed claim (6) pursuant to 29 C.F.R. � 1614.107(a)(1).
The Agency then turned to claims (1) - (5). The Agency dismissed these events pursuant to 29 C.F.R. � 1614.107(a)(1) and 29 C.F.R. � 1614.107(a)(2) for failure to state a claim and for failure to raise the claims in a timely manner before the EEO Counselor. The Agency noted that the events alleged in claims (1) - (5) occurred from February to April 2015. Complainant contacted the EEO Counselor on July 29, 2015, well beyond the 45 day time limit. The Agency also determined that claims (1) - (5) were separate and discrete claims from claim (6) and these claims were not background evidence regarding claim (6). As such, the Agency determined that claims (1) - (5) should also be dismissed for failure to state a claim of harassment.
This appeal followed.
ANALYSIS AND FINDINGS
Failure to State a Claim
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, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
Upon review, we find that claim (6) is a discrete event not connected to claims (1) - (5). Specifically, we note that the event raised in claim (6) involved the Co-worker and the SAC who are not raised in the other events. As such, we review claim (6) on its own. We hold that Complainant has not shown how she was harmed by the action of the SAC and Acting SAC regarding the SAC's actions with the Co-worker. Therefore, we determine that Complainant has not shown that she was harmed by the actions raised in claim (6) and find that the Agency's dismissal of this claim was appropriate.
The Commission has held that where, as here regarding claims (1) - (5), a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). We find that Complainant's allegations are sufficient to state a claim of a hostile work environment. As such, we find that the dismissal of claims (1) - (5) pursuant to 29 C.F.R. � 1614.107(a)(1) was not appropriate. Therefore, we will turn to the Agency's dismissal of these claim for untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2).
Untimeliness
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the Agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence Complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission.
In the case at hand, we have already found that claim (6) was not related to claims (1) - (5). Therefore, Complainant cannot rely on claim (6) for purposes timeliness and we shall only review Complainant's claim of harassment consisting of the events raised in claims (1) - (5). Complainant indicated that that these events occurred from early February 2015 to April 2015. Complainant did not contact the EEO Counselor until July 29, 2015, well beyond the 45 day time limit. Complainant provided no reason to extend the time limit. As such, we determine that the Agency's dismissal of claims (1) - (5) pursuant to 29 C.F.R. �1614.107(a)(2) for untimely EEO Counselor contact was appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
January 5, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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