Darlenev.Lineberger, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionNov 23, 2004
01A44836_r (E.E.O.C. Nov. 23, 2004)

01A44836_r

11-23-2004

Darlene V. Lineberger, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.


Darlene V. Lineberger v. Department of the Army

01A44836

11/23/2004

.

Darlene V. Lineberger,

Complainant,

v.

R.L. Brownlee,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01A44836

Agency No. ARKNOX04APR0087

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated June 9, 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 April 8, 2004, complainant initiated EEO Counselor contact. In her

formal complaint, filed on May 17, 2004, and amended on May 21, 2004,

complainant alleged that she was subjected to discrimination on the

bases of sex and in reprisal for prior EEO activity.

In its final decision dated June 9, 2004, the agency determined that

complainant's complaint was comprised of the following claims:

1) Reprisal:

In 2001, [complainant] allege[s] that [she was retaliated] against when

[she] filed an EEO complaint against a male co-worker at Ireland Army

Hospital (IAH). [She] signed a Negotiated Settlement Agreement on June 29,

2001, and traded jobs with an individual at Nelson Troop Medical Clinic

(NTMC). [She] applied for many jobs after filing this EEO complaint but

[was] not selected until November 17, 2003. [Complainant] allege[s]

that this is because of [her] EEO complaint in 2001.

2) Sexual Harassment:

a) On [April 8, 2004], [complainant] and three other women filed an EEO

complaint... against [a named co-worker, (C1)] at NTMC. [C1]...appeared

in the doorway of the AFGE Conference Room, walked in, and glared at

all of [them]. This frightened [complainant]. The EEO Counselor's

Report indicates that complainant felt intimidated because of her past

experiences with C1, and determined that C1 knew that she was at the

EEO office and had followed her there.

b) Between 2001 and 2002, [C1] left his work and sat on the edge of

[complainant's] desk. He played with [her] hair on more than one

occasion. [Complainant] told him to go away and to stop, but he ignored

[her] and continued to harass [her].

c) Between 2001 and 2002, [C1] persisted very aggressively in pursuing

[complainant]. He bent over to whisper in [her] ear and tried to kiss

[her] on the neck. [Complainant] told him [she was] married and to leave

[her] alone. [She] shut the door between the work areas because he pulled

his chair close enough for him to sit and stare at [her].

d) Between 2001 and 2002, one day in the hall, [C1] grabbed [her]. [She]

told him to take his hands off [her]. Twice [a named individual]...came

out of his office and told [her] to take it some place else. [Complainant]

told [a named co-worker], to warn [C1] to leave

[her] alone. [Complainant was] so afraid of what was going to happen to

[her] if [she] complained because of [her] previous EEO complaint, so

[she] did nothing.

e) Between 2001 and 2003, one day [C1] was sitting in his car when

[complainant] arrived at NTMC. He waited in his car until [she] pulled

up and parked, walked over, and opened [her] door. This frightened

[complainant]. Since he had the key to open the door, [complainant]

waited until the NCOIC or another employee walked in so [she] wouldn't

be alone with him. [Complainant was] frightened and intimidated.

f) Between 2001 and 2003, everyone [at complainant's] work knew

what was going on, however, they didn't do anything. [Complainant]

got tired of fighting [her] battles alone so [she] transferred out of

NTMC. [Complainant] accepted a temporary position at 1/81th Armor from

November 2002 to November 2003.

g) Between 2001 and 2002, when [her] temporary position was abolished,

[complainant] thought [she] was going to have to return to NTMC. There

was a vacancy in 2/46th Inv, 1st ATB, so [she] asked the commander for

assistance in obtaining the position. He referred [her] to the hiring

official and [she] was hired in [her] present position.

The agency dismissed claims (1) and (2)(b)-(2)(g) on the grounds of

untimely EEO Counselor contact. Regarding claim (1), the agency stated

that �[f]inal action on the positions for which [complainant] applied

and [was] not selected took place prior to 45 days before filing this

complaint.� In addition, the agency dismissed claim (2)(a) for failure

to state a claim.

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of

discrimination should 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.

The Commission has adopted a "reasonable suspicion" standard (as opposed

to a "supportive facts" standard) to determine when the forty-five (45)

day limitation period is triggered. See Howard v. Department of the Navy,

EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation

is not triggered until a complainant reasonably suspects discrimination,

but before all the facts that support a charge of discrimination have

become apparent.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that she was not notified of the

time limits and was not otherwise aware of them, that she did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence she was prevented

by circumstances beyond her control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

Claim (1)-Nonselections

Upon review of the record, the Commission is unable to ascertain

whether the agency properly dismissed claim (1) on the grounds of

untimely EEO Counselor contact. Complainant claimed that she was not

selected for numerous positions in reprisal for her prior EEO activity.

The record contains a document with complainant's name and a list of

vacancy announcement numbers. The Commission notes that next to each

vacancy announcement number, there is an annotation with a date and a

comment pertaining to the status of the position (position was filled,

complainant was not referred, etc.). The Commission, however, is unable

to ascertain from the record if and when complainant was notified of her

nonselections or when she should have reasonably suspected discrimination

in regard to her nonselections. The Commission therefore orders the

agency to conduct a supplemental investigation.

Claims (2)(a)-2(g)-Sexual Harassment

The Commission finds that the agency improperly dismissed claims

(2)(a)-(2)(g). We find that the alleged incidents identified in claims

(2)(a)-2(g) constitute a single harassment/hostile work environment claim.

Moreover, none of the incidents represent �discrete acts,� but rather

these incidents serve as examples of complaint's overall harassment

claim. Because the alleged incident on April 8, 2004, (identified in

claim (2)(a)) occurred within the applicable time frame, complainant's

harassment claim as set forth in (2)(a)-(2)(g) is timely.

Accordingly, the agency's dismissal of claim (1) is VACATED and the

agency's dismissal of claims (2)(a)-(2)(g) is REVERSED; these matters

are REMANDED to the agency for further processing in accordance with

the ORDER below. ORDER

The agency is ORDERED to take the following actions:

1. Regarding claim (1), the agency is to conduct a supplemental

investigation to determine whether complainant initiated EEO

Counselor contact in a timely manner pertaining to her non-selections.

Specifically, the agency shall, in writing, request that complainant

identify the specific positions for which she alleges she was not selected

in reprisal for her prior EEO activity. The agency shall supplement

the record with affidavit and/or documentary evidence indicating if

and when complainant was notified of her non-selection for each of the

positions at issue or when complainant should have reasonably suspected

discrimination in regard to her non-selection for each of the positions

at issue. Thereafter, the agency shall issue a new final decision or

acceptance letter pertaining to claim (1). The supplemental investigation

and issuance of the final decision or acceptance letter must be completed

within 30 calendar days of the date this decision becomes final.

A copy of the agency's new final decision or letter of acceptance must

be sent to the compliance officer as referenced below.

2. The agency is ordered to process claims (2)(a)-(2)(g), identified

herein as a harassment/hostile work environment claim, 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

11/23/2004

Date