0120111198
05-20-2011
Darvin G. Bennett, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Darvin G. Bennett,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120111198
Agency No. 2A1L10001
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
final decision dated November 23, 2010, dismissing a formal 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 employed as an Equal
Opportunity Specialist at the Agency’s 375 Air Mobility Wing Equal
Opportunity Office, Scott Air Force Base in Illinois.
On June 14, 2010, Complainant initiated EEO Counselor contact.
Informal efforts to resolve her concerns were unsuccessful.
On September 7, 2010, Complainant filed the instant formal complaint.
Therein, Complainant claimed that the Agency subjected him to
discrimination in reprisal for prior protected activity when:
a. on January 16, 2010, he was removed as an Equal Opportunity Director
(YC-02) and reassigned as Equal Opportunity Specialist (YA-02);
b. on December 14, 2009, two named Colonels [(C1) and (C2)] requested
a Staff Assistance Visit (SAV) with the intention of deterring others
from engaging in protected activity;
c. on December 18, 2009, C1 and C2 did not allow him to address
corrections for problems found during the SAV;
d. on January 14, 2010, C1 called a named Equal Opportunity Director
to a meeting to notify her that she would assume the Equal Opportunity
Director position effective January 18, 2010, sending a chilling effect;
e. in February 2010, C1 and C2 did not give him credit for
implementing, directing and administering the National Security Personnel
System (NSPS) reconsideration process;
f. in November 2009, C2 directed him to change an NSPS rating for a
subordinate from “3” to “4;”
g. in February 2010, C2 rated his NSPS annual rating a “3” and
added negative comments in its appraisal;
h. in October 2009, the 375th Air Mobility Wing/Judge Advocate Deputy
visited his witness in a complaint and ordered the witness to keep and
not delete any email correspondence from him;
i. in June 2010, he learned that in February 2010, C1 and C2
authorized a named Lieutenant Colonel to change an award package from
an Air Force Achievement [Medal]” to an Air Force “Accommodation
” Medal for a Technical Sergeant in the Equal Opportunity Office;
j. on June 14, 2010, he realized that the NSPS to General Schedule
(GS) conversion would result in him being demoted to a GS-11 from an
original GS-12.
In its November 23, 2010 final decision, the Agency dismissed claim
a – g and i – j 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 June 14, 2010,
which it found to be beyond the 45-day limitation period in regard to the
matters raised in claims a – g and i – j. The Agency dismissed claim
h for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1).
CONTENTIONS ON APPEAL
On appeal, Complainant argues that claims a – g and i – j were timely
raised with an EEO Counselor because it is part of a harassment claim.
Specifically, Complainant argues that he initiated EEO Counselor contact
on June 14, 2010 when “I became aware of the RMOs actions were both
appealable and discriminatory and took action to correct this injustice
and actions taken against me.”
Further, Complainant argues that in regard to claim h, the Judge Advocate
Deputy’s “conversation with, visit to, and letter given to my witness
did in fact send the ‘chilling effect’ to my witness.’”
ANALYSIS AND FINDINGS
Claims a – g and i - j
The Agency improperly dismissed claims a – g and i - j on the grounds
of untimely EEO Counselor contact. The record reflects that Complainant
initiated EEO Counselor contact on June 14, 2010. The Commission has held
that “[b]ecause the incidents that make up a hostile work environment
claim collectively constitute one unlawful employment practice, the entire
claim is actionable, as long, as at least one incident that is part of
the claim occurred within the filing period. This includes incidents
that occurred outside the filing period that the [Complainant] knew or
should have known were actionable at the time of their occurrence.”
EEOC Compliance Manual, Section 2, Threshold Issues at 2 – 75 (revised
July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan,
536 U.S. 101, 117 (2002)).
The record reflects that various incidents comprising Complainant’s
harassment/hostile work environment claim occurred within the 45-day time
period preceding Complainant’s June 14, 2010 EEO Counselor contact,
as discussed above. Because a fair reading of the record reflects that
the matter identified in the subject claims are part of that harassment
claim, we find that the Agency improperly dismissed them on the grounds
of untimely EEO Counselor contact.
Claim h
The Agency improperly fragmented Complainant’s claim of ongoing
discriminatory harassment/hostile work environment by dismissing claim h
for failure to state a claim. A fair reading of the matters identified
in those claims reflect that Complainant claims that he was subjected
to a series of related harassing incidents from October 2009 through
June 2010. Moreover, Complainant reiterates on appeal that he was the
victim of harassment as reflected in these incidents. These matters,
taken together, state an actionable claim of harassment. By alleging
a pattern of harassment regarding claim h, Complainant has stated a
cognizable claim under the EEOC regulations. See Cervantes v. USPS,
EEOC Request No. 05930303 (November 12, 1993).
Accordingly, we REVERSE the Agency’s final decision dismissing
Complainant’s formal complaint, defined herein as a harassment claim,
and we REMAND this matter to the Agency for further processing in
accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claim (harassment/hostile
work environment) in accordance with 29 C.F.R. § 1614.108 et seq.
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 20, 2011
__________________
Date
2
***Appeal number TX***
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111198
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