Myong O. Johnson, Complainant,v.Pete Geren, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMay 8, 2007
0120063646 (E.E.O.C. May. 8, 2007)

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