0120100067
05-26-2011
Teeya R. Quinn, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Teeya R. Quinn,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120100067
Agency No. AREUBAM09JUL03079
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated September 21, 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 a Recreation Assistant at the Agency’s US Army Garrison, Child and
Youth Services facility in Bamberg Germany.
On September 9, 2009, Complainant filed a formal complaint alleging
that the Agency subjected her to discrimination on the basis of sex
(female) when:
(1) on July 20, 2009 she discovered she had been non-selected for the
position of Human Resources Technician (Military) by the Director of
Human Resources (HR Director); and
(2) when between June 20-July 31, 2009, the HR Director sexually harassed
her when he told an administrative assistant that when Complainant’s
husband left for training he was going to get Complainant’s “pussy;”
the HR Director made sexual comments to her continuously that he was
going to get her “pussy;” and when the HR Director continuously
invited Complainant to his home, dropped by her house unannounced,
and called her cell phone seven to eight times a day.
The Agency dismissed the complaint, pursuant to 29 C.F.R. §
1614.107(a)(2), due to the untimely filing of the formal complaint.
The Agency indicated that Complainant received the notice of right to
file a formal complaint on August 13, 2009, and that Complainant did not
file her formal complaint until September 9, 2009, beyond the limitation
period. The instant appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which fails
to comply with the applicable time limits contained in 29 C.F.R. §
1614.106(b) which, in turn, requires the filing of a formal complaint
within fifteen (15) days of receiving the notice of the right to do so.
On appeal, Complainant does not dispute that she filed her formal
complaint beyond the requisite fifteen-day period. However, she provides
a number of reasons for the delay and requests that her untimely filing
be excused.
Complainant asserts that she was not happy with the characterization of
her claim in the notice of right to file because the issue of sexual
harassment which she initially raised with the EEO counselor was not
properly included. Further, Complainant asserted that the EEO counselor
only talked to her on the telephone, and focused on her non-selection,
addressing Complainant’s qualifications and veteran’s preference
status Complainant apparently tried to resolve this matter, but stated
that the EEO office was always closed1 and that the EEO specialist was
away on training and vacation, and the manager was out sick. In effect it
appears that Complainant was seeking to have her EEO counseling period
extended because she felt all of her claims were not being properly
recognized.
Based on the facts of this case, the Commission determines that it is
appropriate to vacate the Agency’s dismissal and remand the complaint
for further processing. 29 C.F.R. § 1614.604(c) provides that the time
limitations provided for in the EEO complaint processing regulations are
subject to waiver, estoppel and equitable tolling. Under this authority,
we find that this is an appropriate case to excuse Complainant’s
failure to file her formal complaint within the regulatory 15-day period.
In reaching this decision, we have considered that the complaint at issue
concerns serious allegations of sexual harassment by the Director of Human
Resources, which are supported by at least one witness. Complainant has
asserted that she felt the EEO counselor was not adequately addressing
her claims and was unable to reach the counselor or other EEO office
staff to resolve the issue. Under these facts, the Commission finds it
appropriate to require the Agency to continue processing of the complaint,
despite Complainant’s brief delay in filing her EEO complaint.
Accordingly, the Agency’s dismissal is vacated and the complaint in
remanded to the Agency for further processing in accordance with the
following Order.
ORDER (E0610)
The Agency is ordered to process the remanded claims 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 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 (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
May 26, 2011
__________________
Date
1 We note that Complainant sought EEO counseling at an Agency facility
overseas.
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0120100067
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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