0120090250
02-24-2009
Amy W. Piccola, Complainant, v. Ray LaHood, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Amy W. Piccola,
Complainant,
v.
Ray LaHood,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 0120090250
Agency No. 2008-22091-FAA-03
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated September 15, 2008, dismissing her formal 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 May 29, 2008, complainant initiated EEO Counselor contact. Informal
efforts to resolve her concerns were unsuccessful.
On August 19, 2008, complainant filed the instant formal complaint.
Therein, complainant alleged that she was subjected to discrimination
on the bases of sex (female) and in reprisal for prior EEO activity.
In its September 15, 2008 final decision, the agency framed complainant's
claims in the following fashion:
1. starting in the spring of 2003, and continuing with the most recent act
occurring on March 21, 2008, complainant was subjected to acts of sexual
harassment that consisted of unwelcome comments, looks and touching of
a sexual nature which occurred on a consistent and frequent basis that
has created a hostile work environment;
2. in March 2008, she was reprimanded;
3. she learned that she was not selected for a promotion that was
advertised under Vacancy Announcement Number ASO-ATO08-A186 on July 8,
2008, and she was subsequently removed from her detail to that position
on August 4, 2008; and
4. after reporting the acts of sexual harassment to management,
complainant was told that the alleged harasser is going to come after
her for reporting him to management and she is afraid for her life
[complainant understands that the harasser has been relocated previously
for a similar claim].
The agency dismissed claims 1 and 2 on the grounds of untimely EEO
Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The agency
determined that complainant's initial EEO Counselor contact was on May 29,
2008, which was beyond the 45-day limitation period. Regarding claim 3,
the agency determined that complainant raised this claim for the first
time when she filed the instant formal complaint. The agency further
determined that this claim has not been previously brought before an EEO
Counselor and are not like or related to matters for which complainant
underwent EEO counseling pursuant to 29 C.F.R. � 1614.107(a)(2).
The agency dismissed claim 4 pursuant to 29 C.F.R. � 1614.107(a)(1) for
failure to state a claim, finding that complainant was not aggrieved.
Specifically, the agency stated that although complainant claimed that
the alleged harasser was going to come after her for reporting him to
management, complainant applied for and was selected for an ATCS-2152
position at the Orlando Air Traffic Control which she accepted it on
August 28, 2008 with a start date of October 12, 2008. The agency
stated, however, due to the pending return of the alleged harasser to
the facility, complainant was allowed to transfer to the new facility
effective September 14, 2008, therefore, insuring that she would not be
at the facility when the alleged harasser returned from his suspension.
On appeal, complainant, through her attorney, contends that the agency's
final decision "incorrectly defined her sexual harassment claims as
'starting in the spring of 2003.'" Complainant states that she was
subjected to sexual harassment and a hostile work environment from
approximately August 2005 to the present.
Claims 1 and 2
The agency improperly dismissed claims 1 and 2 on the grounds of untimely
EEO Counselor contact. The record reflects that complainant initiated
EEO Counselor contact on May 29, 2008. The Commission finds that
"[b]ecause the incidents that make up a hostile work environment claim
collectively constitute one unlawful employment practice, the entire
claim is actionable, as long, as at least one incident that is part of
the claim occurred within the filing period. This includes incidents
that occurred outside the filing period that the [complainant] knew
or should have known were actionable at the time of their occurrence."
EEOC Compliance Manual, Section 2, Threshold Issues at 2 - 75 (revised
July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan 536
U.S. 101, 117 (2002)).
The record reflects that at least one of the incidents comprising
of complainant's sexual harassment and hostile work environment claim
occurred within the 45-day time period preceding to complainant's May 29,
2008 EEO Counselor contact. Specifically, complainant alleged that she
was subjected to sexual harassment and a hostile work environment from
approximately August 2005 to the present. Based on the foregoing, we
find that the agency improperly dismissed claims 1 and 2 on the grounds
of untimely EEO Counselor contact.
Claim 3
The agency improperly dismissed claim 3 pursuant to 29 C.F.R. �
1614.107(a)(2). 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 raises a matter that has not been brought to the attention of
an EEO Counselor, and is not like or related to a matter on which the
complainant has received counseling. A later claim or complaint is "like
or related" to the original complaint if the later claim or complaint
adds to or clarifies the original complaint and could have reasonably been
expected to grow out of the original complaint during the investigation.
See Scher v. United States Postal Service, EEOC Request No. 05940702
(May 30, 1995); Calhoun v. United States Postal Service, EEOC Request
No. 05891068 (March 8, 1990).
In the present case, we find that claim 3 concerning complainant not being
selected for a promotion that was advertised under Vacancy Announcement
Number ASO-ATO08-A186 on July 8, 2008, and subsequently removed from
her detail to that position on August 4, 2008 is like or related to
complainant's hostile work environment claim which was raised with the
EEO Counselor.
Claim 4
The agency improperly dismissed claim 4 for failure to state a claim.
Complainant claimed that after reporting the acts of sexual harassment
to management, she was told that the alleged harasser is going to come
after her for reporting him to management and is afraid for her life;
and being subjected to sexual harassment and a hostile work environment
by management. These matters state an actionable claim of harassment.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). The agency's arguments in support of its dismissal for
failure to state a claim go to the merits of complainant's allegation,
and cannot be appropriately considered at the dismissal stage before an
investigation has been conducted.
Accordingly, we REVERSE the agency's final decision dismissing
complainant's complaint, defined herein as a harassment claim, and we
REMAND this matter to the agency for further processing in accordance
with the ORDER below.
ORDER
The agency is ORDERED to process the remanded claim (sexual harassment
and harassment/hostile work environment) in accordance with 29 C.F.R. �
1614.108 et seq. The agency shall, to the extent practicable, consolidate
this complaint with complainant's other pending harassment complaint for
continued processing. 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 (15)
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 acknowledgement 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 (K0501)
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,
D.C. 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 (M1208)
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 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 (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 (Z1008)
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
February 24, 2009
__________________
Date
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0120090250
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090250
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