0120140994
05-07-2014
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120140994
Agency No. AREUKAI13JUL02423
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated November 14, 2013, 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
During the period at issue, Complainant was a Dental Hygienist through a corporate entity identified as TCMP Health Services, LLC (hereinafter referred to as TCMP Health Services) working under a contract with the Agency. Complainant worked at the Agency's Pulaski Barracks Dental Clinic in Kaiserslautern, Germany.
On September 27, 2012, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On September 18, 2013, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected her to discrimination on the basis of sex when:
a. during unidentified dates in 2010, the Sergeant sexually harassed her with sexually charged comments;
b. on an unidentified date in 2010, the Sergeant sexually harassed her with the physical contact of pressing his stomach and penis against her arm while she sat at her desk;
c. at the beginning of 2012, the Sergeant sexually harassed her with sexually charged comments;
d. on July 25, 2012, she informed the TCMP Health Services on-site supervisor of the sexual harassment and he responded that he would turn the Sergeant in as well;
e. on July 31, 2012, the TCMP Health Services on-site supervisor asked her in response to her allegation of sexual harassment "do you know how much paper work this [last name of alleged sexual harassing Sergeant] going to cause me?" and "...if you file this, you are going to be fired!!! and we never had this conversation, I will deny it!;"
f. on September 4, 2012, the TCMP Health Services on-site supervisor informed her that her contract was not being renewed and her position was being eliminated; and
g. on September 30, 2012, her contract with TCMP Health Services was not renewed.
On November 14, 2013, the Agency issued a final decision. The Agency dismissed the instant formal complaint pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds of untimely EEO Counselor contact. The Agency determined that the alleged discriminatory events occurred from 2010 through September 2012, but that Complainant did not initiate contact with an EEO Counselor until July 17, 2013, which the Agency found to be beyond the forty-five limitation period.
In response to Complainant's appeal, the Agency argued that Complainant initiated EEO contact on September 27, 2012 to discuss her contractor status and sexual harassment allegations but she chose not to pursue her original complaint and waited beyond the requisite 45-day limitation period to reinstate contact with an EEO Counselor on July 17, 2013.
Further, the Agency noted that according to the EEO Counselor, she stated that Complainant did not want to proceed in September 2012 time because she was about to travel around Europe before returning to the United States. The record reflects that in her report, the EEO Counselor stated "contact was made with individual via email without result. Individual was found on her last day of work as a contract employee and an appointment was made. Individual was interviewed. Individual is a contractor. Ref. to Contracting Office, TCMP and provided print out for the US EEOC and State of VA where the company is licensed. Contract not renewed, today's individual's last day on the job. Does not want to file complaint. Leaving to travel Europe before returning to Oregon."
Complainant, through her attorney, filed a brief in response to the Agency' response. Therein, Complainant argued that she did not purportedly abandoned her September 27, 2012 EEO contact. Specifically, Complainant argued that on September 27, 2012, she met with the Equal Employment Opportunity Advisor (Advisor) concerning her sexual harassment allegations.
Further, Complainant argued that she timely contacted an EEO Counselor within the 45-day limitation period but the Agency "then failed to follow up by issuing the specific information required by CFR 1614.105(d), including a notice to file a formal complaint within 15 days and notification of the 'appropriate official with whom to file.' The Agency contends that it met its obligation by giving [Complainant] generic information about filing a complaint, citing the information included in Agency Response...that information is simply generic information about time limits for initiating the process (180 days for a non-federal employee and 45 days for a federal employee). That is not what 1614.105(d) requires. Moreover, the evidence does not show that [Complainant] wanted to give up on pursuing a discrimination complaint, as the Army now suggests. Documents submitted by the Army of what happened on September 27, 2012 are contradictory. A Memorandum to the File dated October 2, 2012, and an email from [Advisor] dated September 27, 2012...show that [Complainant] was interested in pursuing a discrimination complaint as of September 27, 2012. These documents contradict the later statement from [EEO Counselor] upon which the Agency rests its argument...[Complainant] attests in her supporting declaration that she never told [Advisor] that she wanted to drop this matter."
The record contains a copy of the Advisor's email dated September 27, 2012 to a named Agency official. Therein, the Advisor stated he met with Complainant to discuss her sexual harassment allegations "she wanted to initiate. The attached document contains all the details she shared with myself and [EEO Counselor] on yesterday afternoon. Please let us know what courses of action we need to pursue in order to ensure [Complainant] receives the proper guidance and service."
The record also contains a copy of the Advisor's memorandum dated October 2, 2012 in which the Advisor stated that the subject memorandum "describes the meeting between [Advisor] and [Complainant] regarding her request for guidance on proper filing of a formal complaint for alleged sexual assault." The Advisor stated that prior to his meeting with Complainant on September 27, 2012, he called the 24-hour hotline "to actually get an idea of how it works, and with this information, my guidance to [Complainant] was to call the hotline and someone on the other end would give her some assistance by pointing her in the right direction."
Finally, the record also contains a copy of Complainant's declaration. Therein, Complainant stated "at no time did I advise [Advisor] or [EEO Counselor] that I did not want to proceed with a complaint of sexual harassment. To the contrary, I wanted to press this matter of sexual harassment with T.C.M.P. and with the U.S. Army."
The instant appeal followed.
ANALYSIS AND FINDINGS
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 personnel action, within forty-five (45) days of the effective date of the action. Failure to bring an alleged discriminatory matter to the attention of the EEO Counselor in a timely manner pursuant to regulation, and absent circumstances requiring extension, see 29 C.F.R. � 1614.105(a)(2) mandates dismissal of complaints for untimeliness. 29 C.F.R. � 1614.107(a)(2).
A review of the EEO Counselor's Report indicates that Complainant initiated EEO Counselor contact on September 27, 2012, not July 17, 2013 as indicated in the instant final decision. In addition, we note that the Supreme Court of the United States held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat 1 R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. The Court defined such "discrete discriminatory acts" to include all acts such as termination, failure to promote, denial of transfer, or refusal to hire, acts that constitute separate actionable unlawful employment practices. Id. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id.
Upon review of the record, we find that the Agency's dismissal was not appropriate. Complainant alleged that the Sergeant's actions constituted sexual harassment; the most recent events occurred on September 4 and 30, 2012. Complainant contacted the EEO Counselor on September 27, 2012. As noted above, a complaint alleging hostile work environment/sexual harassment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. Clearly, the events raised on September 4 and 30, 2012 were timely raised. Therefore, we determine that the Agency's dismissal of the instant complaint was not appropriate.
The Agency's final decision dismissing the formal complaint on the grounds of untimely EEO Counselor contact is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
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 (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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 77960, Washington, DC 20013. 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 (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
May 7, 2014
__________________
Date
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0120140994
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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