0120110068
03-10-2011
Tinesha Lawrence-Hinson, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.
Tinesha Lawrence-Hinson,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01-2011-0068
Agency No. OBD201000144
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision (FAD) dated July 19, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
On April 9, 2010, Complainant filed a formal complaint alleging she
was subjected to a hostile work environment on the bases of parental
status, disability, and age (28 and 29 years old at time of incidents).
In support of her claim, Complainant identified the following incidents:
1. Upon being notified of Complainant's pregnancy, on or about February
2009, the Pardon Attorney (PA) began to question Complainant about her
work performance;
2. Between January and February 2009, PA denied Complainant a promotion;
3. Complainant has been asked to perform tasks outside of her job
description;
4. On or about November 27, 2009, PA denied Complainant's request to
work from home;
5. PA refused to adhere to Complainant's medical restrictions; and
6. On or about January 11, 2010, PA attempted to discourage Complainant
from applying for the Voluntary Leave Transfer Bank, by implying that
Complainant was unqualified.
The Agency dismissed allegations 1 through 3 for untimely EEO Counselor
contact and claims 4 through 6 for failure to state a claim as well
as for mootness. The Agency found that Complainant was not aggrieved
by the alleged actions described in allegations 4 through 6 and that,
in any event, Complainant had since left her position with the Agency
and hence the claims had become moot. The Agency further noted that
Complainant was not covered by the ADEA because she was under the age
of 40 at the time of the alleged incidents. The Agency did not address
the issue of Complainant's claim of parental status discrimination.
The instant appeal of the dismissal followed. Neither side has submitted
a brief or argument on appeal.
ANALYSIS AND FINDINGS
We note initially that, because Complainant was under the age of 40 at
the time of the alleged incidents, the Agency correctly found that she
is not covered by the ADEA. Moreover, as regards Complainant's claim of
parental status discrimination, the Commission has no jurisdiction over
claims of marital and parental status discrimination. The Commission only
has authority over federal sector complaints of discrimination on the
bases of race, color, religion, sex, national origin, age (over 40),
disability or reprisal. See 29 C.F.R. ��1614.106(a); Lee v. United
States Postal Service, EEOC Appeal No. 01965341 (September 4, 1998).
With regard to Complainant's disability claim, the Agency dismissed
allegations 1 through 3 on the grounds that Complainant did not contact
an EEO counselor until December 23, 2009, and that these incidents are
therefore outside the 45-day regulatory period and therefore untimely.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the 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. We note, however, that the Supreme Court has held that a
complaint 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, 536 U.S. 101, 117 (June 10, 2002).
The Court further held, however, that "discrete discriminatory acts
are not actionable if time barred, even when they are related to acts
alleged in timely filed charges." Id. Finally, the Court held that such
untimely discrete acts may be used as background evidence in support of
a timely claim. Id.
With this in mind, we note that Complainant's claims can be analyzed as
constituting a single claim of ongoing hostile work environment. Because
Complainant contacted a Counselor within 45 days of allegations 4, 5,
and 6, the entire hostile work environment is timely.1
Furthermore, we note that 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). Under such a standard we find
that allegation 5, when viewed as an individual claim, states a valid
claim of denial of a reasonable accommodation that should also not have
been dismissed.
With regard to the issue of mootness, we note that the regulation set
forth at 29 C.F.R. � 1614.107(a)(5) provides for the dismissal of a
complaint when the issues raised therein are moot. To determine whether
the issues raised in complainant's complaint are moot, the factfinder
must ascertain whether (1) it can be said with assurance that there is
no reasonable expectation that the alleged violation will recur; and
(2) interim relief or events have completely and irrevocably eradicated
the effects of the alleged discrimination. See County of Los Angeles
v. Davis, 440 U.S. 625, 631 (1979); Kuo v. Dep't of the Navy, EEOC
Request No. 05970343 (July 10, 1998). When such circumstances exist,
no relief is available and no need for a determination of the rights of
the parties is presented. The Agency contends that the issues are moot
because Complainant no longer works for the Agency.
The Commission has held that an Agency must address the issue
of compensatory damages when the Complainant presented objective
evidence that she incurred compensatory damages and that the damages
were related to the alleged discrimination. See Jackson v. USPS, EEOC
Appeal No. 01923399 (November 12, 1992); request to reopen denied, EEOC
Request No. 05930386 (February 11, 1993). Consequently, where, as here,
a Complainant requests compensatory damages during the processing of
her complaint, the Agency is obliged to request from the Complainant
objective evidence of such damages. In this case, the Agency did not
request objective evidence of compensatory damages from Complainant.
Should Complainant prevail in her claim, the possibility of an award of
compensatory damages exists, and Complainant's claim is therefore not
moot. See Glover v. USPS, EEOC appeal No. 01930696 (December 9, 1993).
For the above reasons we AFFIRM the FAD in part and REVERSE in part, and
REMAND the complaint to the Agency for further processing in accordance
with the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims (hostile work
environment and denial of reasonable accommodation) 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it
also requires the Agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the Agency issues its final decision on your complaint.
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
March 10, 2011
__________________
Date
1 Allegation 2, concerning the denial of a promotion, is properly
dismissed for untimely Counselor contact as a discrete disparate
treatment claim because Complainant did not contact an EEO Counselor
until well after the 45-day regulatory period. However, allegation 2
may be considered as evidence in support of Complainant's hostile work
environment claim.
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01-2011-0068
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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01-2011-0068