0120131858
09-25-2013
Janelle L. Harrison, Complainant, v. Penny Pritzker, Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.
Janelle L. Harrison,
Complainant,
v.
Penny Pritzker,
Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration),
Agency.
Appeal No. 0120131858
Agency No. 54-2013-00085
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 28, 2013, 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
At the time of events giving rise to this complaint, Complainant worked as a Hydrographic Assistant Survey Technician at the Agency's Office of Marine Operations stationed aboard the Ship Fairweather (ship).
On February 25, 2013, Complainant filed a formal complaint alleging that she was subjected to sexual harassment by her coworkers June 2012 to January 2013.
In support of her claim of harassment, Complainant indicated that she was sexually harassed by her co-worker (Coworker 1) with whom she had sexual relations. Complainant noted that she was stationed on a ship, where she worked and lived with her coworkers for a month at a time. Complainant alleged that soon after she began working on the ship, she and Co-worker 1 had a sexual encounter after a night of drinking with co-workers. During this encounter, Complainant alleged that Coworker 1 told her that if he were a woman he would use sex to get ahead at work. Complainant stated that Co-worker 1 later provided details of their sexual encounter to her coworkers on the ship. She said she felt that everyone on the ship knew about them, and Coworker 1 conspired with other coworkers to engage in an ongoing pattern of "hazing" and harassing her over the sexual encounter, causing her severe emotional distress.
On February 6, 2012, Complainant contacted an Agency EEO counselor alleging that she was sexually harassed and assaulted; emotionally and physiologically abused; and a victim of sexual bullying.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1). The Agency found that several of the events raised by Complainant occurred off the ship and during non-work hours. Further, the Agency noted that it was Complainant who sent sexually explicit emails to Co-worker 1. Moreover, the Agency determined that Complainant did not inform management about the alleged sexual harassment until after Co-worker 1 rejected Complainant's invitation to a concert. Therefore, the Agency determined that Complainant only complained about Co-worker 1 when he rebuffed her advances.
This appeal followed. Complainant argued that she was in fact subjected to sexual harassment and the Agency's dismissal was not appropriate. We note that Complainant also asserted that she was subsequently terminated in retaliation for her EEO complaint about the harassment.
ANALYSIS AND FINDINGS
Upon review, the Commission finds that Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. After a review of the Agency's final decision, we find that the Agency has addressed the merits of Complainant's complaint without a proper investigation as required by the regulations. The Agency's arguments that Complainant cannot prove sexual harassment because she engaged in voluntary sexual relations with her coworker and only filed a complaint after this coworker rebuffed her further advances goes to the merits of Complainant's complaint, and is irrelevant to the procedural issue of whether she has stated a justiciable claim under Title VII. See Osborne v. Department of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United States Postal Service, EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642 (August 15, 1991).
Unwelcome sexual advances or verbal or physical conduct of a sexual nature constitute sexual harassment when such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. See 29 C.F.R. � 1604.11(a)(3). The Commission has recognized that harassment which occurs outside of work may state a claim when the effect of the off-duty incident creates an "intolerable influence on the employee's working conditions." See Pierce v. Department of State, EEOC Appeal No. 0120110631 (June 16, 2011); Kokangul v. Dep't of the Army, EEOC Appeal No. 01A61380 (July 6, 2006); Palacios v. Dep't of the Air Force, EEOC Request No. 01830134 (June 6, 1983). A work environment, like the one at issue, where employees both work and live together, make it more likely that off-site, off-duty incidents have such an effect on the work environment.
Therefore, we find that Complainant has alleged an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994), and the Agency's dismissal of her complaint without an investigation and further processing was improper.
Finally, we note that Complainant has asserted on appeal that she was subsequently terminated in retaliation for her harassment complaint. The Commission's regulations allow a complainant to amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the complaint. Therefore, the Agency, while processing the instant complaint, should amend the complaint to include this claim of a retaliatory termination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims (harassment and termination) 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
September 25, 2013
__________________
Date
2
0120131858
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131858