0120110064
02-18-2011
Deborah A. Johnson, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Deborah A. Johnson,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120110064
Agency No. ARCEHECSA01APR01431
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision (FAD) dated August 18, 2010, 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
In her complaint, Complainant alleged that the Agency subjected her to
discrimination on the bases of race (African-American), sex (female),
and reprisal for prior protected EEO activity under Title VII when:
1. In April 2006 Complainant was moved to a different office (a distance
of 500 yards) because of an incident between Complainant and a contractor
(C1);
2. In April 2008 Complainant was falsely accused of aiding a contractor
(C2) who had been touched in an inappropriate sexual manner by another
contractor (C3); and
3. On April 1, 2010, Complainant was informed by another contractor (C4)
that C1 had referred to Complainant as a nigger on several occasions.
The Agency dismissed the claims for failure to state a claim.
In addition, the Agency found that Complainant's EEO Counselor contact
was untimely with regard to claims 1 and 2, and that with regard to claim
3, the issue was moot because C1 had been terminated by her employer.
On appeal, Complainant does not address the issue of late Counselor
contact but contends that she continues to suffer harassment from the
Management Supervisory Emergency Management Specialist/Deputy Director,
an Agency management official (MO). The Agency reiterates the arguments
made below and requests that we affirm the FAD.
ANALYSIS AND FINDINGS
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. Dep't of the Navy,
EEOC Request No. 05970852 (Feb. 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.
The record shows that the incidents in claims 1 and 2 occurred in April
2006 and 2008 respectively, but Complainant did not contact an EEO
Counselor until April 8, 2010, which is beyond the regulatory limit.
On appeal, Complainant has presented no persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO Counselor
contact.
With regard to claim 3, the Agency found that the claim failed to state
a claim and that it was moot. In determining whether a harassment
complaint states a claim in cases where a complainant had not alleged
disparate treatment regarding a specific term, condition, or privilege of
employment, the Commission has repeatedly examined whether a complainant's
harassment claims, when considered together and assumed to be true,
were sufficient to state a hostile or abusive work environment claim.
See Estate of Routson v. National Aeronautics and Space Administration,
EEOC Request No. 05970388 (February 26, 1999).
The Commission has further held that, under certain circumstances,
a limited number of highly offensive slurs or comments about a federal
employee's race may state a claim or support a finding of discrimination
under Title VII. The Commission has previously noted that the use of
the racial epithet "nigger" is a "highly charged epithet" which "dredge
[s] up the entire history of racial discrimination in this country." See
Brooks v. Dep't of the Navy, EEOC Request No. 05950484 (June 25, 1996).
We therefore find that claim 3 states a claim of harassment.
Nor do we find that the claim is moot. Complainant in her formal and
informal complaints identified MO as being involved in the harassment,
in addition to C1, who has since been removed. The record, however,
does not show that MO has been removed and indeed on appeal, Complainant
contends that she continues to suffer harassment from MO. We therefore
find that the Agency has not shown that the claim is moot. Accordingly,
the complaint is AFFIRMED in part and REVERSED in part and claim 3 is
REMANDED to the agency for further processing in accordance with this
decision and the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant
that it has received the remanded claim 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 (T0610)
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 your appeal with the Commission, until
such time as the Agency issues its final decision on your complaint.
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 (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
February 18, 2011
__________________
Date
2
0120110064
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110064