Sylvia D. Bustamante, Complainant,v.John M. McHugh, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionDec 9, 2011
0120100866 (E.E.O.C. Dec. 9, 2011)

0120100866

12-09-2011

Sylvia D. Bustamante, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.




Sylvia D. Bustamante,

Complainant,

v.

John M. McHugh,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120100866

Agency No. ARWSMR09MAR00849

DECISION

Complainant filed a timely appeal with this Commission from the Agency's

decision dated November 16, 2009, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as

an Accounting Technician at the Agency’s Managerial Accounting Division,

at the Agency’s White Sands Missile Range facility in New Mexico.

On March 4, 2009, Complainant contacted an EEO Counselor, and on April

16, 2009, filed a formal complaint alleging that the Agency subjected her

to discrimination on the bases of race (Native American), sex (female),

age (49), and reprisal for prior protected EEO activity under Title VII

of the Civil Rights Act of 1964 when:

1. She was subjected to sexual harassment by her supervisor (Supervisor).

Complainant also noted that her failure to comply with the Supervisor’s

sexual innuendos ruined her opportunities for advancement within the

Agency.

2. In February 2009, the Supervisor gave the Agency’s Civilian

Personnel Advisory Center a negative referral about Complainant’s

qualifications. As a result of the negative referral, Complainant was

not referred for a GS-1101-07 Contract Performance Evaluator position.

3. On April 15, 2009, Complainant’s second line supervisor issued her

a Letter of Reprimand which was recommended by the Supervisor.

The Agency dismissed claim (1), namely Complainant’s claim of sexual

harassment, for failure to state a claim pursuant to 29 C.F.R. §

1614.107(a)(1). The Agency determined that the incidents did not

constitute sexual harassment. The Agency found that the alleged innuendos

and events raised by Complainant were not in fact sexual harassment.

The Agency accepted claims (2) and (3) for investigation. Thereafter,

Complainant was issued the Report of Investigation and requested a final

Agency decision.

The Agency issued its final decision. As an initial matter, the Agency

found that it had initially improperly dismissed Complainant’s claim of

sexual harassment pursuant to 29 C.F.R. § 1614.107(a)(1). However, the

Agency found that the dismissal of this issue was nonetheless appropriate

because Complainant failed to raise her claim of harassment in a timely

manner. The Agency noted that Complainant alleged that the Supervisor

made sexual comments and innuendos to her from September 2008 to October

2008. The Agency found that Complainant’s initial EEO counselor contact

in March 2009 was well beyond the 45-day time limit. Accordingly, the

Agency dismissed Complainant’s claim of sexual harassment pursuant to

29 C.F.R. § 1614.107(a)(2). With regard to the merits of claims (2) and

(3), the Agency found that Complainant failed to establish her claims

of discrimination regarding the negative referral by the Supervisor and

the reprimand recommended by the Supervisor and approved by the second

level supervisor.

Complainant appealed. On appeal, Complainant argues, through counsel,

that her claim of sexual harassment was timely raised and the Agency

improperly limited her claim of harassment to the September – October

2008 time frame. Complainant argues that, in her formal complaint,

she in fact alleged that she had been subjected to sexual harassment at

the hands of the Supervisor starting in April 2008 and that the pattern

of harassment continued until April 2009. She asserted that when she

rejected the Supervisor’s advances, the Supervisor retaliated against

her by giving the negative reference and recommending the reprimand.

Therefore, Complainant argued that the Agency treated her claim of

harassment in a piecemeal fashion separating out the most recent events

of the alleged harassment from the overall claim. She further claimed

that she informed her second level supervisor of the Supervisor’s

alleged harassment and he did nothing about it. Therefore, Complainant

requested that the Commission review her formal complaint and reinstate

her claim of sexual harassment.

The Agency argued that Complainant failed to show that the alleged

events constituted a claim of harassment. The Agency asserted that

Complainant has not provided evidence to show that the events alleged

constituted discrimination based on her race, sex, age, or in reprisal

for any protected activity. Therefore, the Agency asked the Commission

to affirm its final decision finding no discrimination.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the agency shall

dismiss a complaint or a portion of a complaint that fails to comply

with the applicable time limits contained in §1614.105, §1614.106 and

§1614.204(c), unless the agency extends the time limits in accordance

with §1614.604(c). 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 of the United States 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 Nat’l R.R. Passenger

Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002).

Here, Complainant clearly alleged in her formal complaint that she

had been subjected to sexual harassment by the Supervisor. Further,

she asserted that when she rejected his advances, the Supervisor

took action against her in the form of the negative referral and the

recommended reprimand. Therefore, we find that Complainant alleged that

the harassment began as early as April 2008 and continued through the

time the Supervisor issued the negative reference in February 2009 and

when she received the reprimand in April 2009. Therefore, we find that

Complainant’s contact on March 4, 2009, was within 45 days of at least

one of the events raised in support of her claim of harassment. As such,

we determine that the Agency improperly dismissed Complainant’s claim

of harassment. Therefore, we REVERSE the Agency’s final decision

dismissing this claim and REMAND the matter in accordance with the

Order below.

In addition, the Commission notes that it would be inappropriate to

address the merits of the accepted claims of discrimination at this time.

As noted above, Complainant has asserted that these events are part of

a pattern of harassment taken by the Supervisor and her second level

supervisor based on her sex, race, age and prior protected activity.

Therefore, we VACATE the Agency’s final decision finding no

discrimination and REMAND these claims in accordance with the Order below.

ORDER (E0610)

The Agency is ordered to process the remanded complaint of ongoing

harassment in accordance with 29 C.F.R. § 1614.108 et seq. 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 supplemental

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 regarding all the

remanded claims, namely claim (1), (2) and (3), 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 (K0610)

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 77960, Washington, DC

20013. 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 (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 (R0610)

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 (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

December 9, 2011

__________________

Date

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0120100866

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120100866