012010332
06-22-1989
Tracy L. Harris, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Tracy L. Harris,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120103332
Agency No. 4R0M01002
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated July 9, 2010, dismissing his 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 Training Technician at the Agency's 301st Medical Squadron, Caswell Air Force Base facility in Ft. Worth, Texas. On September 28, 2009, Complainant contacted an EEO Counselor. On January 12, 2010, he filed an informal complaint of discrimination. On June 16, 2010, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination when, from 2005-2008, his Supervisor (S1) subjected him to sexual, verbal, and emotional harassment and abuse, and then abandoned him in his position.
The complaint was originally dismissed on January 26, 2010 for being untimely. On March 29, 2010, the agency rescinded the dismissal and continued processing the informal complaint through the informal complaint stage. Then, on July 9, 2010, the Agency dismissed the complaint again for untimely EEO Counselor contact. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant states that he was subjected to sexual abuse and verbal harassment by his Supervisor (S1). As a result, he has been diagnosed with Major Depressive Disorder and Post Traumatic Stress Disorder. Complainant contends that he was unable to report the harassment because he never had an appropriate place to report it. He maintains that the time frames should be extended in this case because his supervisor threatened to kill him by shooting him with a bullet if he ever reported the harassment. He further argues that in 2008, he suffered a breakdown following an unsuccessful suicide attempt, and took some time off work. On some date after his return to work, Complainant states he found S1 had written a plan to terminate him. Complainant also suggests that he did not complain earlier for fear that he would be terminated due to the Agency's "Don't ask, Don't Tell" policy.
On appeal, the agency states that Complainant's contact was well beyond the 45 day time frame required in the Regulations, and asks that we affirm its final action.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) 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.
EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
In the instant case, Complainant contacted the EEO Counselor on September 28, 2009 regarding events that occurred as recently as 2008. Complainant's contact is well beyond the forty-five day time limitation. However, Complainant claims that he was unable to contact an EEO Counselor because of his incapacitation and fear of physical harm. Although the Commission routinely holds that fear of reprisal is not sufficient grounds for extending the time frames, see Duncan v. Dep't of Veterans Affairs, EEOC Request No. 05970315 (July 10, 1998); Kovarik v. Dep't of Def., EEOC Request No. 05930898 (Dec. 9, 1993), we find this case is distinguishable.
In the instant case, Complainant alleges that S1 made a threat against his life if he ever informed anyone about the harassment. Complainant's account of the threat is specific. Two statements from Complainant's brother and niece, report that Complainant informed them that a threat against his life had been made. See Complaint File at p. 6 and 7. Accordingly, in light of the evidence to support Complainant's legitimate fear of violent, physical reprisal, the Commission finds reason to extend the time frames in this matter.1
CONCLUSION
Accordingly, we REVERSE the agency's final decision and REMAND the matter to the agency in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. 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
__________________
Date
1 The agency did not substantively address Complainant's dual-status as both a Federal Civil Service employee and a member of the Air Force Reserves, or dismiss the complaint for failure to state a claim on that basis. We find insufficient evidence in the record at this point to dismiss this complaint because of Complainant's dual status. The Commission has recognized the "dual status" of federal technicians in the reserves, noting that those individuals are considered both uniformed military personnel, as well as civilian employees. See Brazill v. National Guard Bureau, EEOC Appeal No. 01891698 (June 22, 1989). However, the Commission has held that federal technicians are covered by federal nondiscrimination law only when the discriminatory action arises from their capacity as civilian employees, and not when personnel decisions affect their capacity as uniformed military personnel. See Coombs v. Department of the Air Force, EEOC Request No. 05860067 (June 8, 1987). Here, the agency has not provided sufficient facts so that we could determine whether the alleged discrimination took place in the context of Complainant's capacity as a federal civilian employee or his capacity as a uniformed member of the military unit in question. To the contrary, the limited evidence in the record suggests that the harassment took place during the week, while Complainant worked in his civilian capacity. See Complaint File at p. 24.
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01-2010-3332
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103332