0120063646
05-08-2007
Myong O. Johnson, Complainant, v. Pete Geren, Acting Secretary, Department of the Army, Agency.
Myong O. Johnson,
Complainant,
v.
Pete Geren,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120063646
Agency No. ARBELVOIR06FEB00672
DECISION
Complainant filed an appeal with this Commission from a final agency
decision, dated April 19, 2006, dismissing her formal 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.
The Commission accepts the appeal in accordance with 29 C.F.R. �
1614.405.
On February 21, 2006, complainant initiated contact with an agency
EEO office regarding claims of a hostile work environment and sexual
harassment. Informal efforts to resolve complainant's concerns were
unsuccessful. On April 6, 2006, complainant filed a formal complaint
based on race, sex, and national origin.1
On April 19, 2006, the agency issued the instant final decision. Therein,
the agency determined that complainant's complaint was comprised of
nineteen separate claims, which the agency identified as follows:
(1) Complainant is constantly being yelled at, embarrassed, demeaned and
belittled in front of others, and she was told that she shouldn't get
paid. Complainant is given tasks to do although she was not trained on
the appropriate equipment or software, she didn't have a SIPRNET account.
However, [Employee L] was not yelled at when he was told he did not have
a SIPRNET account.
(2) As of April 6, 2006, complainant does not have her 2004 evaluation
and QSI.
(3) On April 4, 2006, as complainant was going to the Xerox room, she saw
two employees standing and talking. As she passed, they stopped talking.
When she left the Xerox room and passed the same two employees, those
two employees both said "Hi Myong". She said to them, "It's true."
(4) On March 27, 2006, complainant received an e-mail asking about
management absences. When complainant asked [Employee E] what was the
response, he told complainant that [Responsible Management Official-1]
had left work around 2:25. Complainant told him that she did not have a
leave slip for RMO-1; RMO-1 said that [Employee G] would submit a leave
slip tomorrow.
(5) On March 15, 2006, [Employee S] told complainant that he leave early
every Wednesday for doctor's appointments, and he comes to work early and
uses those hours. [Employee S] turns in his leave slips to [Employee L]
and [Employee L] signs them; yet he places complainant's in [RMO-1's]
box unsigned.
(6) On March 13, 2006, [Employee U] requested 2 hours annual leave,
her leave slip was signed and she was granted leave.
(7) On February 5, 2006, [RMO-1] came into complainant's cubicle and
told her that he wanted to put what happened behind her because he made
a mistake.
(8) On January 6, 2006, complainant was given a letter of response to
her allegation of discrimination that she had submitted to [an agency
official] on August 15, 2005. The letter of response was dated December
7, 2005. It seemed that all of complainant's concerns were dismissed
and that she was going to have to continue working in a hostile work
environment.
(9) Also on January 6, 2006, complainant received a letter of counseling
and she believed it was because of the letter she wrote concerning
[RMO-1's] actions toward complainant.
(10) In December 2005, [RMO-1] requested more work from complainant
because the Division Chief Secretary, didn't know how to use certain
programs such as Power Point, Microsoft Excel. Complainant also orders
equipment. However, [RMO-1] promoted [Employee U] in December 2005,
and complainant was not promoted.
(11) On August 12, 2005, complainant met with [General H], reference
[RMO-1's] past treatment of her. [General H] asked complainant if she
had discussed the issues with [an agency official], complainant told him
that she sent [the agency official] an e-mail and he refused to read it.
(12) In June 2005, at an award ceremony, [Employee U] received her 25
year pin. However, when complainant received her 20 year pin on August
4, 2005, it was placed in her inbox with a paper clip attaching it to
her certificate.
(13) On May 3, 2005, [RMO-1] asked complainant why [Employee H] traveled
business class on April 5, 2005. Complainant when to [Employee H] to get
the information from him, and they both asked [RMO-1] why he wanted the
information. [Employee H] told complainant to back off and that he would
handle it. [RMO-1] turned and walked away without saying anything.
(14) On January 31, 2005, [RMO-1] showed complainant a picture on his
computer of a female wearing a short skirt surrounded by some males.
(15) On October 6, 2004, [RMO-1] told complainant that he wanted 24 hours
advance notice is she was going to be late coming to work. However, at
that time, employees were showing up late for work, or not showing up at
all, and nothing was being said, and no one was submitting leave slips.
Complainant asked [RMO-1] about this, and he said he does not care about
them.
(16) In October 2004, [RMO-1] asked complainant to go to lunch with him
numerous times. Complainant was not comfortable, and always told him
no. Afterward, your working relationship deteriorated and has continued
to this day.
(17) On September 20, 2004, complainant sent [an agency official] an
e-mail requesting assistance because of [RMO-1's] behavior. [RMO-1] was
informed of complainant's complaint and he began to pick at everything
complainant did. She had to hire an attorney to assist with her case
as she was in jeopardy of being suspended.
(18) On July 14, 2004, [RMO-1] requested that complainant type his CPMs
evaluations, stating that they needed to be completed that day. He gave
complainant the last two CPMs just before she was getting ready to leave
for the day, so she stayed and completed them, resulting in complainant
having to work overtime. When complainant turned in her timesheet,
[RMO-1] did not approve her overtime hours.
(19) On July 12, 2004, [Retired Employee W]., came to complainant's office
yelling and pointing his finger at her. [RMO-1] told [Retired Employee W]
that complainant questioned him about [Retired Employee W's] time sheet,
and he was upset because of that.
The agency dismissed the formal complaint on two grounds. Specifically,
the agency dismissed claims (1), (2), and (8) - (19) on the grounds of
untimely EEO Counselor contact. The agency determined that complainant's
initial EEO of February 21, 2006, was more than forty-five days after
the alleged events occurred. The agency also dismissed claims (3) -
(9), (11) - (13) and (19) for failure to state a claim.
On appeal, complainant, through her attorney, argues that she has
presented a claim "based on a series of events in which [RMO-1] has
engaged in a continued pattern of verbal abuse and harassing conduct of
a sexual nature. . . ." Complainant asserts that the "yelling and other
harassing behavior . . . began late 2004, shortly after [she] refused
[RMO-1's] repeated invites to have lunch." Complainant contends the
harassment has continued, as recently as January 25, 2006 and April 4,
2006.
Moreover, complainant argues that her formal complaint included an
attachment comprised of fifteen paragraphs, but that the final agency
decision "altered the wording of many allegations . . . to consist of
nineteen [claims]." Complainant states she will provide clarification
on appeal. Specifically, complainant states that the matter identified
in claim (1), occurred on January 25, 2006; and that the agency failed
to include a specific date, and erroneously dismissed the claim pursuant
to 29 C.F.R. � 1614.107(a)(2). Regarding the matter raised in claim
(2), complainant argues that the event identified therein occurred after
her initial EEO Counselor contact. Complainant asserts that claim (2)
is merely part of a series of acts by RMO-1 and should be considered
retaliation. Regarding claim (3), complainant states that one of the
"employees" was RMO-1. Complainant argues that the agency failed to note
that RMO-1 snuck up behind her, slammed his feet down and startled her.
Complainant also disputes the agency's dismissal of claims (8) and (9),
stating that because the matters identified therein occurred on January 6,
2006, the expiration of the 45-day time period was on February 20, 2006,
a national holiday (President's Day). Complainant argues that because the
time frame expired on a holiday, it is extended to the next business day,
making her contact timely. Finally, we note that complainant argues that
because the January 25, 2006 incident is timely, all her earlier claims
must also be considered to be timely (making reference specifically to
claims (3), (14) and (16)).
Claims (3) - (9), (11) - (13), and (19): Failure to State a Claim
Dismissal
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she
has been discriminated against by that agency because of race, color,
religion, sex, national origin, age or disabling condition. 29 C.F.R. ��
1614.103, .106(a). The Commission's federal sector case precedent has
long defined an "aggrieved employee" as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
A fair reading of the complaint reflects a single claim of harassment
by RMO-1. As noted above, complainant describes a series of events
and details from 2004 until January 25, 2006. Instead of treating
these events as incidents of the claim of harassment, however,
the agency fragmented them and considered each one individually.
Thus, we find that the agency acted improperly by treating the
matters raised in complainant's complaint in a piecemeal manner.
See Meaney v. Department of the Treasury, EEOC Request No. 05940169
(November 3, 1994) (an agency should not ignore the "pattern aspect"
of a complainant's claims and define the issues in a piecemeal manner
where an analogous theme unites the matter complained of). By alleging
a pattern of harassment, complainant has stated a cognizable claim under
EEOC regulations. See Cervantes v. United States Postal Service, EEOC
Request No. 05930303 (November 12, 1993). Consequently, we find that
the agency improperly dismissed claims (3) through (9), (11) and (13)
and (19) for failure to state a claim.
Claims (1), (2) and (8) - (19): Untimely EEO Contact Dismissal
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 Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 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.
The agency erred when it dismissed claims (1) and (2) on the grounds of
untimely EEO Counselor contact. We note that the agency fails to even
identify a specific date for the event in claim (1). The complainant
argues, however, that the incident occurred on January 25, 2006
and it is therefore, timely. The Commission agrees. In claim (2),
the event transpired after complainant's initial counselor contact.
Consequently, the agency cannot dismiss the claim pursuant to 29 C.F.R. �
1614.107(a)(2).
Regarding claims (8) - (19), moreover, the Commission determines that
these matters are part of complainant's overall claim of harassment,
as discussed above. Because some of the events identified in this claim
were timely raised with the EEO Counselor, we conclude that claims (8) -
(19) were timely raised as well.
Accordingly, the agency's decision to dismiss the complaint was
is REVERSED. The complaint as identified herein is REMANDED to the
agency for further processing accordance with this decision and the
ORDER below.
ORDER (E0900)
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 (K0501)
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 (M0701)
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 (R0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
May 8, 2007
__________________
Date
1 The final agency decision and the EEO Counselor's Report do not
identify the basis of national origin, although we note that complainant
also included that basis on her formal complaint. The agency is
reminded that it must clearly and explicitly dismiss bases and offer
appeal rights regarding them, in order to have such bases stated in
a formal complaint dismissed. See Jozlin v. Department of Veterans
Affairs, EEOC Appeal No. 01920040 (February 12, 1992)..
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0120063646
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063646