0120083009
12-03-2008
Monica R. Sookdeo, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Monica R. Sookdeo,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120083009
Agency No. ARCARSON08MAR01357
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision (FAD) dated May 7, 2008, 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 her
complaint, complainant alleged that she was subjected to discrimination
based on her sex (female) when she was sexually harassed by a co-worker
from December 26, 2007 to January 10, 2008. At the time of her complaint,
complainant served as a health systems technician.
The FAD dismissed the complaint for failure to timely initiate contact
with an EEO counselor. It reasoned that complainant initiated this
contact on March 17, 2008, beyond the 45 calendar day time limit for
doing so. 29 C.F.R. � 1614.105(a)(1) and .107(a)(2).
Complainant spoke to a manager on or about January 11 and 14, 2008,
which the agency's opposition to complainant's appeal identifies as
her supervisor, about the alleged sexual harassment. According to
complainant, the supervisor responded that he would call EEO office
to see what proper steps needed to be taken to start the process.
Thereafter, on January 30, 2008, complainant was notified that there
would be a Commander's Inquiry of her claim. While this was an internal
administrative investigation, complainant informed the EEO counselor that
she believed it was an EEO investigation. When complainant learned on
March 17, 2008, that the Commander's Inquiry concluded without a finding
of harassment, she contacted an EEO counselor the same day.
According to what appears to be EEO counselor notes, the supervisor said
that in response to complainant's claims that he called an EEO counselor
outside complainant's presence to learn of his responsibilities, and
never told complainant this covered her. According to the EEO counselor,
complainant said the supervisor called the EEO office to see what he
should do as a manager about sexual harassment in the workplace.
The time limit to initiate contact with an EEO counselor can be
extended for reasons considered sufficient by the agency or Commission.
29 C.F.R. � 1614.105(a)(2). Complainant argues that she believed the EEO
process commenced upon her contact with her supervisor. In opposition
to complainant's appeal, the agency argues that the supervisor's actions
should not extend the time limit to initiate EEO counseling because
he contacted an EEO counselor to learn of his responsibilities, and
never told her she was covered by his contact. The agency argues that
nothing about the Commander's Inquiry should have confused complainant
into believing it was an EEO investigation.
Dowdy v. Department of the Army, EEOC Appeal No. 0120083106 (September
19, 2008), concerned a sexual harassment complaint by a co-worker
of complainant who had the same supervisor and involved the same
alleged perpetrator. The Commission reversed the agency's dismissal
for untimely EEO contact. In strikingly similar facts, the complainant
in Dowdy contended that when she informed the supervisor of the alleged
sexual harassment, he stated he would contact the EEO office to see how
to proceed. In light of this, it ruled that the complainant exhibited
her intent to begin the EEO process when she contacted her superior
about her concerns on January 11, 2008.
Like in Dowdy, we find sufficient reason to extend the time limit to
initiate EEO counseling. Complainant wrote that the supervisor said
he would call EEO office to see what proper steps needed to be taken
to start the process, and there is no statement in the record by the
supervisor denying this. The Commander's Inquiry followed shortly
thereafter, likely creating more confusion in complainant's mind.
We find that the agency unintentionally misled complainant to believe
the EEO process had been initiated on January 11, 2008.
Accordingly, the FAD is reversed.
ORDER (E0408)
The agency is ordered to process the remanded claims 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 (K0408)
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 19848,
Washington, D.C. 20036. 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 (M0408)
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 19848,
Washington, D.C. 20036. 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 (R0408)
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 (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
December 3, 2008
__________________
Date
2
0120083009
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120083009