0120073289
11-16-2007
Nyoka J. Chandler, Complainant, v. Charles F. Connor, Acting Secretary, Department of Agriculture, Agency.
Nyoka J. Chandler,
Complainant,
v.
Charles F. Connor,
Acting Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120073289
Agency No. FSIS-2004-040441
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 13, 2007 final decision concerning her equal
employment opportunity (EEO) complaint alleging 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 appeal is accepted and subject
to de novo review pursuant to 29 C.F.R. � 1614.405. Complainant alleged
that she was sexually harassed and discriminated against on the basis
of sex (female) when:
1. A previous male supervisor:
a. Made sexually suggestive remarks;
b. Repeatedly physically assaulted her,
c. Threatened and coerced her into not telling anyone of his acts, and
2. Management reassigned her to work with her previous supervisor.
At the conclusion of the investigation, the agency provided complainant
the option of having a hearing before an EEOC Administrative Judge (AJ)
or an agency final decision. Complainant elected to have a hearing;
however, the AJ assigned to the case denied the request and remanded
the matter to the agency after complainant failed to comply with the
scheduling order. Consequently, the agency issued a final decision.
In a lengthy decision, the agency dismissed the complaint on two grounds.
First, with regard to Issue 1, the agency found that complainant raised
the claim 15 years too late. The alleged incidents occurred in 1988-1989,
but she did not initiate EEO Counselor contact until 2004. As such,
the claim is untimely. With regard to Issue 2, the agency found that
the reassignment was the result of a general shift change. Management
explained that those employees who lacked sufficient seniority had no
choice in the shift that was assigned to them. Complainant lacked
sufficient seniority; therefore, she had to move into the second
shift. This explanation, according to the agency, was legitimate and
non-discriminatory, and complainant had not shown that the reason was
a pretextual. The agency therefore concluded that the weight of the
evidence indicated that neither discrimination nor harassment occurred.
Nevertheless, the agency committed itself to conduct a supplemental
investigation into the allegation raised in Issue 1.1
On appeal, complainant argues that the agency's decision must be reversed.
She states that she developed Post-Traumatic Stress Disorder because of
the alleged incidents.2 She further states that she did not know about
the 45-day time limit or even what EEO meant at the time of the incidents.
She never saw an EEO poster and no one ever explained her EEO rights.
Nevertheless, she states that in any case, "I would have never filed a
complaint back then because I was too afraid." The agency, for its part,
submitted no statement in opposition to the appeal.
Upon review of the record and the arguments on appeal, we affirm the
agency's final decision. We dismiss Issue 1 because she did not bring the
claim to an EEO Counselor in a timely manner. EEOC Regulation 29 C.F.R. �
1614.105(a)(2) requires that complaints of discrimination be brought to
the attention of the EEO Counselor within forty-five days of the alleged
discriminatory matter. We apply a "reasonable suspicion" standard (as
opposed to a "supportive facts" standard) to determine when the forty-five
day limitation period is triggered. See Howard v. Dep't of the Navy,
EEOC Request No. 05970852 (Feb. 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. The regulations further provide that the agency or
the Commission shall extend the time limits when "the individual shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not
have known that the discriminatory matter or personnel action occurred,
that despite due diligence he or she was prevented by circumstances beyond
his/her control from contacting the Counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission."
29 C.F.R. � 1614.105(a)(2).
We are hard pressed to accept complainant's argument that she did not
know that she had EEO rights or that there was a complaint mechanism
to handle her claim.3 She acknowledges that she knew management's
actions were wrong, and even illegal; therefore, at the time the alleged
incidents were taking place, she reasonably suspected discrimination;
however, she elected to remain silent. We have consistently held that
a complainant must act with due diligence in the pursuit of her claim
or the doctrine of laches may apply. See Gregory v. Dep't of Commerce,
EEOC Appeal No. 0120065004 (June 14, 2007); O'Dell v. Dep't of Health and
Human Services, EEOC Request No. 05901130 (Dec. 27, 1990). The doctrine
of laches is an equitable remedy under which an individual's unreasonable
delay or neglect in asserting a right or claim bars her from pursuing
her claim. See Blacks Law Dictionary 606 (6th ed. 1991). Certainly,
a fifteen year delay coupled with an admission that she would never
have a claim reveals a lack of due diligence, and as such, her claim is
dismissed as untimely.
With regard to Issue 2, even if we accept complainant's assertions as
true and find that she established a prima facie claim of discrimination,
we still find that she has not provided proof that the agency's stated
reasons for reassigning her were pretextual. In addition, we find no
evidence that Issue 2 proves her harassment claim. Under the standards
set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993),
complainant must prove that: (1) she was subjected to harassment that
was sufficiently severe or pervasive to alter the terms or conditions
of employment and create an abusive or hostile work environment,
and (2) the harassment was based on membership in a protected class.
See Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 6
(Mar. 8, 1994). Even assuming criterion (1) is met, we do not find that
she has satisfied criterion (2).
Therefore, having reviewed the record and considered the arguments on
appeal, we find no error in the agency's final decision. Complainant has
failed to prove her claim. As such, we affirm the agency's decision.
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 (S0900)
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 (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
November 16, 2007
__________________
Date
1 The agency stated:
[T]his case is being referred pursuant to USDA's Accountability Policy
and Procedures, Department Regulation 4300-10, for a determination of the
appropriate disciplinary or other corrective action, if any. The Agency
is ordered to conduct an additional and thorough investigation involving
Issue 1 and specifically, the allegations of sexual harassment made by
the Complainant and other witnesses within the ROI involving the conduct
of RMO.
Final Agency Decision at 23.
2 Although we certainly sympathize with complainant and her condition,
we note that she has not raised a disability claim. As such, her alleged
disorder is treated as background evidence only.
3 In its final decision, the agency points out that at the time the
alleged incidents took place, co-workers and supervisors attest that
an EEO Poster, which explains the 45-day time limit, was prominently
placed in an area where complainant would have seen it. See Final Agency
Decision at 3 and Attachment 1.
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0120073289
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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