0120081802
05-15-2008
_________________, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
_________________,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120081802
Agency No. ARTACOM07OCT04708
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated February 1, 2008, 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.
On June 25, 2007, complainant was hired as a temporary summer employee at
the Sierra Army Depot in Herlong, California. Throughout her employment
with the agency, complainant was a seventeen-year-old high school
student. While her appointment was not to exceed September 30, 3007,
complainant resigned from her position on August 14, 2007. On October
29, 2007, complainant first sought EEO counseling from the agency
concerning her allegation that during her employment she was subjected
to discrimination on the basis of sex (female) when she was sexually
assaulted and harassed by a coworker. She filed a formal EEO complaint
on the matter on January 17, 2008, which the agency dismissed, pursuant
to 29 C.F.R. � 1614.107(a)(2), for untimely EEO counselor contact.
It is from this decision that complainant now appeals.
The record indicates that complainant has alleged that while she initially
performed clerical tasks, she later was asked to work away from the
office in an outer building (Building 380) doing more manual labor.
She states she was assigned to work with a regular agency employee
(Coworker 1). She asserts that she and Coworker 1 often worked alone.
She alleges that by August, Coworker 1 started "making lots of rude sexual
comments to [her] and seemed to find ways to touch [her]." She said
that over the next week or so, the comments and touching increased in
frequency. Finally, she stated that during her last week of work "he
became very aggressive and molested and raped me." She also alleges that
he threatened her if she told anyone. She resigned from her position
effective August 14, and initially told no one. However, on or about
October 14, 2007, she thought she might be pregnant as a result of the
alleged sexual assault, and told her parents what happened. Her parents
then contacted the police, and the agency was informed of the charges.
As the alleged events occurred on federal property, the matter was
investigated by the Federal Bureau of Investigation (FBI) as well as the
local police. The record contains an affidavit from one of investigating
FBI agents, who avers that during his interview with Coworker 1, he
admitted to engaging in sexual touching of complainant over a period
of time while they were working in Building 380 and to having sexual
intercourse with her in August. Coworker 1 was later arrested and
charged with unlawful sexual intercourse with a person under the age of
18, and resigned from the agency effective October 18, 2007.
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 agency dismissed the complaint finding that the alleged last episode
of sexual harassment occurred in August 2007, and complainant did not
initiate contact with an EEO counselor until October 29, 2007, beyond
the 45-day limitation period.
On appeal, complainant's representative argues that the brief sexual
harassment training complainant received from the agency during her
new employee orientation was not presented to take into consideration
the perspective of a teenager without any work experience. Moreover,
complainant's representative asserts that as soon as complainant
revealed what had happened to her parents, the matter was reported to the
appropriate law enforcement officials and the agency, and was handled
as a criminal matter and EEO was not considered. However, he asserts
that sometime in October, an agency EEO official became aware of the
matter and contacted complainant through her parents. As a result of
this contact, complainant sought EEO counseling on October 29, 2007.
The Commission finds that, under the circumstances of this case,
equitable tolling of the limitation period is appropriate. 29 C.F.R. �
1614.604(c). Complainant was a minor child at the time of the incidents
in question. While the agency argues that complainant received training
related to EEO time frames, the Commission is not convinced that,
as a minor, she understood the full magnitude of such timeframes or
even the events that transpired. Moreover, there is no indication that
complainant's parents, who were her legal guardians, had any knowledge of
the time frames for EEO processing. Complainant did seek EEO counseling
within 45 days of her parents' knowledge of the alleged sexual harassment.
As such, the Commission finds that waiver of the timeframe is appropriate.
Further, the Commission finds that not only did complainant raise a
claim of hostile work environment/sexual harassment as recognized by the
agency, but that she also raised a claim of constructive discharge as
she asserts she was forced to leave the agency because of the alleged
sexual harassment before the end of her employment period.
Accordingly, the agency's final decision dismissing complainant's
complaint is REVERSED and the matter is REMANDED to the agency for
further processing in accordance with the Order set forth below.
ORDER (E0408)
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 (K0408)
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 19848,
Washington, D.C. 20036. 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 (M0408)
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), 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 19848,
Washington, D.C. 20036. 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 (R0408)
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 (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 15, 2008
__________________
Date
2
0120081802
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120081802