Faustina L.,1 Complainant,v.Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Sep 25, 2019

2019001013 (E.E.O.C. Sep. 25, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Faustina L.,1
Complainant,

v.

Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.

Appeal No. 2019001013

Agency No. 201827880FAA02

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated September 26, 2018, 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. and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Manager at the
Agency’s Southern Regional Office located in College Park, Georgia.

On April 23, 2018, Complainant initiated EEO contact alleging that the Agency discriminated
against her on the bases of race (African-American), sex (female), and age (56) when:

1. effective October 1, 2017, the Agency gave Complainant a directed reassignment
to the position of Division Manager, Shipper Program, Office of Hazardous
Materials Safety,
2. on October 1, 2017, the Agency did not select Complainant as Manager of the
newly-created Part 21 Branch (AXH-320),

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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3. in December 2017, the Agency reassigned Complainant’s support staff, and, in
April 2018, her first level supervisor (S1) informed her that the staff would not be
replaced,
4. her second level supervisor (S2) subjected Complainant to hostile work
environment harassment, including: in September 2015, causing distrust with
another office by not meeting with Complainant prior to a meeting with that
office; in March 2016, providing information to Agency executives before
Complainant had a chance to do so; and, in October 2016, removing an
assignment from Complainant.

On July 12, 2018, Complainant filed a formal EEO complaint reiterating the above allegations.

In a final decision dated September 26, 2018, the Agency dismissed Complainant’s complaint
pursuant to 29 C.F.R. §§ 1614.107(a)(1) and (a)(2), for failure to state a claim and untimely EEO
contact, respectively. Specifically, the Agency stated, for (1) through (3), Complainant initiated
EEO contact on April 23, 2018 for discrete events that occurred and of which Complainant was
aware in 2017, which is outside of the 45-day statutory timeframe. The Agency stated, as a
manager, Complainant is aware of the regulatory timeframes. Further, for (4), the Agency stated
that the most recent alleged discriminatory incident occurred in 2016 so Complainant’s April 23,
2018 initial contact is also untimely for her harassment claim. The Agency found also, regarding
(4), Complainant failed to allege “a pattern of acts sufficiently severe or pervasive to alter the
conditions of [her] employment.” The Agency found that the incidents alleged were isolated.

The instant appeal from Complainant followed. On appeal, Complainant stated that management
overwhelmed her with duties and made it impossible for her to succeed in her position, thereby,
forcing her to retire in July 2018. Also, Complainant stated that she suspected discrimination
when, on April 9, 2018, S1 informed her that she would not get assistance for her duties in the
shipper program, and, on April 13, 2018, she learned that she was not included in discussions
about a large shipper of hazardous materials. Complainant stated that management had a
“pattern and practice” of discriminating against her, dating back to 2015. Complainant stated
that her claim is of hostile work environment and the actions listed are incidents to support her
claim.

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 Supreme Court has
held that a complaint alleging a hostile work environment will not be time barred if all acts
constituting the claim are part of the same unlawful practice and at least one act falls within the
filing period. See National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). The Court
recognized that allegations of harassment and the existence of a hostile work environment
involve, by their nature, a series of incidents linked by a pattern of conduct.
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This is contrasted with claims involving discrete acts such as a promotion or termination which
are clearly defined. In those instances, the Court held that “discrete discriminatory acts are not
actionable if time barred, even when they are related to acts alleged in timely filed charges.” Id.
Untimely discrete acts may, however, be used as evidence in support of a timely claim of
harassment. Id.

Pursuant to Morgan, an overall claim of harassment is timely if all the acts constituting the claim
are part of the same unlawful practice and at least one act falls within the filing period. Here, a
portion of (3), S1 informing Complainant in April 2018 that management would not replace her
staff, falls within the filing period. However, incidents (1), (2), and the December 2017 portion
of (3), are discrete acts and do not fall within the 45-day statutory time-frame for Complainant’s
April 23, 2018 initial contact. Further, pursuant to 29 C.F.R. § 1614.107(a)(1), we find that the
remaining incidents do not state an actionable claim of harassment. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993). We agree with the Agency that the remaining actions are
isolated incidents of alleged harassment over a two-year period and are insufficient to state a
hostile work environment claim. We find the Agency’s dismissal proper pursuant to 29 C.F.R. §
1614.107(a).

CONCLUSION

Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
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Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (S0610)
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. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests.
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Such requests do not alter the time limits for filing a civil action (please read the paragraph titled
Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 25, 2019
Date