0120111455
06-29-2011
Paula G. Baker, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency.
Paula G. Baker,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Transportation Security Administration),
Agency.
Appeal No. 0120111455
Agency No. HS-09-TSA-005224
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated December 17, 2010, 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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Expert Behavior Detention Officer and National Instructor at the
Agency’s International Jetport facility in Portland, Maine.
On April 2, 2009, Complainant initiated contact with an EEO Counselor
and subsequently, on December 24, 2009, Complainant filed a formal
complaint alleging that the Agency subjected her to discrimination on
the bases of race (Caucasian), sex (female), color (white), age (50), and
reprisal for prior protected EEO activity when she was sexually harassed
and exposed to a sexualized workplace by her Team Manager starting in
2006, when she joined his team. In support of her claim of harassment,
Complainant indicated that the following events occurred:
1. Around November 2006, Complainant’s Team Manager (TM) informed her
that she was a "fluke" and had ruined the “SPOT” training because
she was not an original Behavioral Detection Officer (BDO), and did not
deserve or earn the job.
2. In November 2006, the TM informed Complainant that she was not allowed
to eat or socialize with a new team of all male students.
3. In November or December 2006, the TM exposed Complainant to
pornography, which included viewing sexually-explicit websites on
a computer in the training room in full view of Complainant and the
students. TM and a female employee viewed photos on “MySpace” of
the female employee in seductive poses and showing her cleavage.
4. Sometime during the period of 2006-2007, the TM asked Complainant if
she and a male instructor were "sharing a room."
5. On unspecified dates in 2006-2007, in her presence, the TM discussed
the physical and sexual attributes of students and performing sexual
acts with students.
6. During 2006 and ongoing, the TM perpetuated and encouraged a “frat
house/good old boys' club mentality" by stating during his orientation
speech, "You can't do the student, but you can do each other."
7. Sometime in winter 2006 or spring 2007, the TM asked Complainant if
she breast fed or wanted to breast feed her students. Additionally,
she was told by the TM that Complainant was motherly and a nurturer.
The TM noted that those are not conducive to the “SPOT” trainer job.
8. In 2007, Complainant was replaced on TM’s team with another female
instructor, who Complainant alleged was sexually involved with the TM,
because Complainant would not conform to the TM's "abuse and misconduct."
9. In December 2007, Complainant was not selected for the position of
Supervisory Behavior Detection Officer.1
The Agency initially accepted the matter for an investigation. During
the investigation, evidence was developed concerning Complainant’s
failure to contact the EEO Office in a timely manner concerning her
harassment claims. The Agency determined that all the events proffered
by Complainant in support of her claims occurred in 2006 and 2007, but
she did not contact an EEO counselor until April 2009. The Agency also
determined that Complainant has been provided with EEO training and was
aware of the 45-day time frame. Therefore, the Agency concluded that
the matter should be dismissed, pursuant to 29 C.F.R. §1614.107(a)(2),
for untimely EEO Counselor contact.
Complainant appealed. On appeal, Complainant asserted that she had
actually raised her claims of harassment in an earlier filed EEO
complaint. However, she did not hear from the Agency acknowledging
receipt of her complaint. She stated that she raised the issue with
an EEO official who told her to file another complaint. Therefore,
Complainant contends that the Agency should not be able to dismiss the
matter because it caused the delay.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory or, in the case of
a personnel action, within 45 days of the effective date of the action.
The Supreme Court has held that a complainant alleging a hostile work
environment will not be time barred if all acts constituting the claim
are part of the same unlawful practice and at least one act falls within
the filing period. See National Railroad Passenger Corp. v. Morgan,
122 S.Ct. 2061 (June 10, 2002).
Upon review of the record, we find that rationale in Morgan does not
apply to this case because although Complainant has alleged that all
the acts she identified are part of the same unlawful practice, she has
failed to identify a single event that occurred within 45 days of her
April 2, 2009 EEO counselor contact. Rather, all the events raised
by Complainant in her formal complaint occurred in 2006 and 2007,
two years before she sought EEO counseling. Moreover, we note that
Complainant was transferred away from TM’s team in 2007, and TM left
the Agency in January 2009, and Complainant no longer had any contact
with him. Therefore, the record fully supports the determination that
Complainant’s April 2009 EEO counselor contact was untimely.
On appeal, Complainant, for the first time, indicated that she had
raised the issue of the alleged harassment with the Agency prior to
April 2009, but the Agency failed to act on her complaint. However,
Complainant failed to provide any support for this claim. Furthermore,
from the time she sought counseling in April 2009 through her statements
provided during the EEO investigation, Complainant never mentioned a
previous EEO complaint raising her claim of harassment. Based on our
review of the record, we are not convinced by Complainant’s argument on
appeal that she raised the matter earlier with the EEO Office. Therefore,
we find that Complainant’s contact in April 2009 was well beyond the
45-day time limit and Complainant failed to show that the time frame
should be extended.
Accordingly, we determine that the Agency’s dismissal, pursuant to
29 C.F.R. §1614.107(a)(2), was appropriate and AFFIRM the Agency’s
final decision.
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 (S0610)
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 (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
June 29, 2011
__________________
Date
1 On her complaint form, Complainant indicated her non-selection was
in 2009. However, in her affidavit provided during the investigation
she clarified that she was actually complaining about a December 2007
non-selection.
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0120111455
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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