0120093719
02-26-2010
Dyanna L. Moore, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Dyanna L. Moore,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120093719
Agency No. 9S1L09003
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated August 21, 2009, 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.
In March 2008, complainant was hired as a cook at the Scott Bowling
Center, otherwise known as the Stars and Strikes Bowling Center, located
on the Scott Air Force Base in Illinois.
In her complaint, complainant alleged that she was discriminated
against based on her sex (female) when she was harassed from March 2008
through April 30, 2009, and was constructively discharged on May 1,
2009.1 Specifically she alleged that from March 2008 to October 2008,
she was sexually harassed by the bowling center manager, with examples
including physical and verbal innuendo, staring at her and watching
her and following her around, once grabbing her breast, sending her
sexually explicit text messages, some of which indicated he wanted sexual
relations, repeatedly turning their conversations to the topic of sex,
and implying that if she wanted to be scheduled for more work hours,
she needed to submit to his advances.2
Complainant contended that in October 2008, the manager's good friend,
a female cashier, got hold of his cellular phone, read his text messages
to complainant, and then, acting almost like a jealous lover, started
harassing complainant daily. Alleged examples included belittling
complainant in front of customers, screaming at her, accusing her of
pursuing the manager, tattling on her, and ignoring her when she needed
to speak to the cashier. According to complainant, when she was at the
end of her emotional limit she said a derogatory word about the cashier,
which got back her. Complainant alleged that on November 30, 2008, she
received a text message from the bowling center manager that the cashier
was very angry with her, that he did not want any confrontations between
them, and that he wanted complainant to take some time off. Thereafter,
complainant was not scheduled for anymore work. Complainant contends
this occurred because the manager's friend, the cashier, did not want
to work with her and complainant would not submit to the manager's
sexual advances.
Complainant contended that she was not fired, but the manager would not
give her any hours nor respond to her repeated attempts to contact him.
Around the second or third week of February 2009 complainant applied for
unemployment insurance benefits, and promptly started collecting them.
According to complainant, she advised the unemployment office that she
did not know her employment status, but she was not getting any hours.
Complainant alleged that on April 29, 2009, the assistant manager called
her to advise she would be put back on the schedule the next day.
Complainant alleged the assistant manager said complainant would get
what hours they had left. Complainant contends this meant she would
not be getting her regular hours of 9 AM to 3 PM, 10 PM to 3 PM, or 9
AM to 5 PM, Monday through Friday, but would instead get only a couple
hours each week to avoid having her scheduled when the manager's friend
cashier was working and because she refused the manager's sexual advances.
Complainant alleged the only reason she was called was because a cook
quit, and the manager learned he could not hire another cook while
complainant was collecting unemployment benefits.
Complainant contended that she resigned on May 1, 2009. She contended
that she did so because she could not return to the harassment and a
bad schedule.
The agency dismissed the complaint for failure to timely initiate EEO
counseling. It found that the last act of discrimination occurred on
February 22, 2009, when complainant stopped trying to obtain employment
at the bowling center [as evidenced by filing for unemployment insurance
benefits]. The agency found that complainant initiated contact with
an EEO counselor on May 28, 2009, beyond the 45 calendar day time limit
was beyond the 45 calendar day time limit.
On appeal, complainant argues that she was not aware of the 45 calendar
day time limit to initiate EEO counseling. She also argues that
harassment continued through April 29, 2009, when she got the call from
the assistant manager.
In opposition to the appeal, the agency argues that complainant had
constructive and actual notice of the 45 calendar day time limit to
initiate EEO counseling. It submits an affidavit by a human resources
chief that on April 24, 2008, complainant took Newcomers Training, which
had an EEO component that covered how and where to file EEO complaints
and the time limits for doing so. The agency submits documentation that
the training covered the 45 day time limit to initiate EEO counseling,
and how to contact a counselor. Further, the chief writes that there
was a poster by the bowling center time clock where employees clock in
and out, and her staff verified it was there on July 22, 2008, and at
other times. The poster advised of the 45 day time limit to initiate
EEO counseling and gives contact information for doing so.
The agency also argues that since complainant's last duty day was in
late November 2008, and she applied for unemployment insurance benefits
by February 22, 2009, no discrimination occurred within 45 calendar days
of when complainant initiated EEO contact.
An aggrieved person must seek EEO counseling within 45 days of the date
of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. �
1614.105(a)(1) & .107(a)(2). The agency or Commission shall extend the
45-day time limit when the individual shows that she was not notified
of the time limits and was not otherwise aware of them.
It is the Commission's policy that constructive knowledge will be
imputed to an employee when an employer has fulfilled its obligation
of informing employees of their rights and obligations under EEOC's
regulations. Thompson v. Department of the Army, EEOC Request No. 05910474
(Sept. 12, 1991). Based on the affidavit of the human resources chief
and the accompanying supporting documentation, we impute constructive
knowledge to complainant of the 45 day time limit to initiate EEO
contact.
A hostile work environment claim is comprised of a series of separate
acts that collectively constitute one unlawful employment practice.
National Railroad Passenger Corporation v. Morgan, Jr., 536 U.S. 101, 117
(2002). Unlike a claim which is based on discrete acts of discrimination,
a hostile work environment claim is based upon the cumulative effect
of individual acts that may not themselves be actionable. Id. at 115.
A hostile work environment claim will not be time barred if all acts
constituting the claim are part of the same unlawful practice even if
some component acts of hostile work environment fall outside the statutory
time period so long as an act contributing to the claim falls within the
filing period. Id. at 117. However, if a discrete act that occurred
before the filing period is part of a timely hostile work environment
claim, the charging party may only challenge the act as part of the
hostile work environment claim. For example, if a pre-filing period
demotion is related to a pattern of abusive conduct or language that
continued into the filing period, then the demotion may be considered in
assessing whether the employee was subjected to a hostile work environment
and determining the appropriate remedy for that violation. However,
because there was no timely challenge made to the demotion, it would not
be independently actionable, and the charging party would not be entitled
to relief, such as back pay or instatement, for the demotion itself.
See EEOC Compliance Manual, Section 2: Threshold Issues, pages 2-76 and
2-77 (May 12, 2000) (available at www.eeoc.gov).
Applying the above principles, we find that complainant has alleged
a series of separate acts that collectively constitute one unlawful
employment practice. The bowling center manager allegedly perpetrated
much of the alleged harassment, i.e., sexually harassing complainant for
about seven months, and shortly thereafter removing her from the schedule
so she had no hours. Complainant contended that when the bowling center
offered on April 29, 2009 to put her back on the schedule, it only offered
leftover hours, which complainant described as meaning minimal hours
and not her normal schedule. Complainant contended that the bowling
manager was behind this for discriminatory reasons. We disagree with
the agency's argument that the harassment ceased at the end of November
2008 or by February 22, 2009. Further, complainant alleged that she
was constructively discharged on May 1, 2009, and contacted an EEO
counselor about this within the 45 calendar day time limitation period.
Accordingly, complainant's hostile work environment and constructive
discharge claims are timely.
The dismissal of complainant's harassment and constructive discharge
claims are REVERSED and the matter is REMANDED to the agency for further
processing in accordance with the Order set forth below.
ORDER
The agency is ordered to process the claim that complainant was
discriminated against based on her sex (female) when she was harassed from
March 2008 through April 30, 2009, and was constructively discharged on
May 1, 2009 in accordance with 29 C.F.R. � 1614.108.3 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 (K1208)
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 (M1208)
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 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 (T0408)
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 (Z1008)
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 26, 2010
__________________
Date
1 This characterization of the complaint differs from the agency's
characterization in the FAD. Our characterization more accurately
captures the complaint.
2 According to the counselor's report, the bowling center manager
admitted that he engaged in appropriate conduct and crossed the line in
the workplace.
3 The body of this decision gives guidance on what this claim was about.
As explained in the body of this decision, not scheduling complainant
for work and later offering her a bad schedule was part of the hostile
work environment claim.
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0120093719
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120093719