0120101359
07-22-2011
Elizabeth Tse-Au, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Elizabeth Tse-Au,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120101359
Agency No. ARFTMONM09JUL03062
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated January 5, 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.
For the reasons that follow, the Commission REVERSES the Agency’s
final decision.
BACKGROUND
At the time of events giving rise to this complaint,
Complainant was employed as a Computer Engineer at the Agency’s
Communications-Electronics Research, Development, and Engineering Center,
Space and Terrestrial Communications Directorate in Fort Monmouth,
New Jersey. On December 2, 2009, Complainant filed a formal complaint
alleging that the Agency subjected her to discrimination on the bases of
race (Chinese) and sex (female) when she was harassed by her Supervisor
(S1). The Final Agency Decision characterized the harassment in the
following manner:
1. In October 2007, at a farewell luncheon for a co-worker, S1 made a
speech which included mention of this co-worker’s hips, stating that
she was able to use her hip to move a piece of lab equipment;
2. In Fall 2008, when Complainant was using her foot to hold open a
water fountain, S1 suggested to her that she use her hip instead;
3. In February 2009, when Complainant and S1 were lost in the middle of
the night, Complainant remarked, “Let’s get out of here before we
get mugged,” to which S1 replied, “Relax, nobody is going to molest
you;” and
4. Complainant was ranked lower than what her paperwork suggested she
should be ranked in her May 7, 2009 performance review.
In its Final Agency Decision, the Agency dismissed Complainant’s
complaint on the basis that it was initiated by untimely EEO Counselor
contact pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined
that Complainant formed a reasonable suspicion of alleged discrimination
on May 7, 2009, because this was the effective date of the performance
review. Final Agency Decision (FAD), p. 1-2. The Agency concluded
that, because Complainant contacted the EEO Counselor on July 10, 2009,
her EEO Counselor contact was untimely. FAD at 2.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that the Agency improperly dismissed
her complaint. She claims she did not know about the forty-five (45)
day time limit, and even if she did, she initiated timely EEO Counselor
contact because she did not have reasonable suspicion until May 26,
2009, when she received her pay stub. The Agency counters that it gave
constructive notice to Complainant of the 45-day time limit, and that
she acquired reasonable suspicion on May 7, 2009, when she received her
performance review.
ANALYSIS AND FINDINGS
As a preliminary matter, the Commission notes that the Final Agency
Decision failed to include additional claims found in the complaint.
These include the following: 1) S1 yelling at Complainant over a bookcase,
2) S1 sending Complainant abusive e-mails, 3) S1 chastising Complainant
over a paragraph, and 4) S1 telling Complainant in a demeaning tone to
stop walking. The dates of these alleged actions were from February,
2008, to March 19, 2009. Consequently, we review the Agency’s dismissal
in light of these additional claims.
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 45 days of the date of the matter alleged
to be discriminatory or, in the case of a personnel action, within 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 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.
Moreover, where, as here, there is an issue of timeliness, “[a]n Agency
always bears the burden of obtaining sufficient information to support a
reasoned determination as to timeliness.” Guy v. Dep’t of Energy,
EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep’t
of Def., EEOC Request No. 05920506 (Aug. 25, 1992)). In addition, in
Ericson v. Department of the Army, the Commission stated that “the
Agency has the burden of providing evidence and/or proof to support its
final decisions.” Ericson, EEOC Request No. 05920623 (Jan. 14 1993); see
also Gens v. Dep’t of Def., EEOC Request No. 05910837 (Jan 31, 1992).
In this case, Complainant claims she was not notified of the 45-day time
limit for contacting an EEO Counselor. The Agency contends that it gave
Complainant constructive notice of the 45-day time limit. In support of
its contention, the Agency provided a certificate of completed Prevention
of Sexual Harassment (POSH) training and an affidavit from Complainant’s
second level Supervisor (S2). However, neither of these documents
prove Complainant had constructive notice of the 45-day time limit.
The certificate of completed POSH training does not mention the 45-day
time limit, nor does the Agency provide any evidence that the time limit
was included in the training. Exhibit 10 to Agency’s Mot. to Dismiss
Appeal (Ex. 10). Further, while S2’s affidavit states that the issue
of contacting an EEO Counselor was discussed, it does not mention that
the 45-day time limit was discussed. Ex. 9. Under these particular
circumstances, we find that the Agency has not shown that Complainant
had constructive knowledge of the EEO time limit. Therefore, we find
that Complainant’s EEO contact should be subject to equitable tolling.
See Grant v. Dep’t of Homeland Sec., EEOC Appeal 0120103037 (Feb. 17,
2011) (Agency dismissal reversed when merely evidence of training
presented without evidence that 45-day time limit was covered); Butler
v. Dep’t of Homeland Sec., EEOC Appeal 0120100650 (May 6, 2010)
(Agency dismissal reversed when no evidence that 45-day time limit was
covered in training).
In so finding, we note that it is the burden of an agency to provide
the evidence or proof to substantiate its final decision. See Marshall
v. Dep't of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991).
Consequently, we find that the Agency improperly dismissed Complainant’s
complaint.1
CONCLUSION
Accordingly, the Commission REVERSES the Agency's dismissal of the
instant complaint and REMANDS the complaint to the Agency for further
processing in accordance with this decision and the ORDER below.
ORDER
The Agency is ordered to process the remanded complaint as characterized
in this decision 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
July 22, 2011
Date
1Because we find that the Agency did not provide constructive notice of
the 45-day time limit to Complainant, we need not reach the question of
when Complainant acquired reasonable suspicion of discrimination.
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0120101359
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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