0120152362
01-08-2016
Ashlee P.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Department of Defense Education Activity), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ashlee P.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.
Appeal No. 0120152362
Agency No. PEFY15064
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 5, 2015, 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 the events giving rise to this complaint, Complainant worked as a Guidance Counselor for the Agency's Seoul Elementary School, located in the Korea District.
On May 19, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), and reprisal for prior protected EEO activity (participation as a witness for a colleague's EEO complaint on March 27, 2015) under Title VII of the Civil Rights Act of 1964 when:
1. On March 25, 2015, the Principal of Complainant's school (P) issued a Letter of Caution to Complainant.
2. From February 2, 2015 through May 11, 2015, P subjected Complainant to harassment, which included the following incidents:
a. On February 2, 2015, P told Complainant that someone informed her that Complainant was reporting to work late.
b. On an unspecified date, P told Complainant that her office curtains needed to be removed because she needs to be able to see into Complainant's office at all times.
c. On March 3, 3015, P asked Complainant why she went to the counselors' meeting without P's permission, and claimed that Complainant yelled at her and interrupted her in a meeting.
d. On an unspecified date, P yelled at Complainant in the front office in the presence of office staff, a visitor, and another school counselor.
e. On March 31, 2015, Complainant found a message that she perceived to be threatening written on the marker board on her door, "Education is not the filling of a pail, but rather the igniting of a fire!" accompanied by a drawing of a campfire.
On June 4, 2015, the Agency issued a final decision dismissing the complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for raising "a matter that has not been brought to the attention of a Counselor and is not like or related to a matter that has been brought to the attention of a Counselor." Specifically, the Agency alleges that Complainant, via her non-legal representative failed to make "good faith" effort to cooperate in the precomplaint counseling process by intentionally withholding requested information in order to reach appellate review before the Commission more quickly.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(7) provides for the dismissal of a complaint where the agency has provided the complainant with a written request to provide relevant information or otherwise proceed with the complaint, and the complainant has failed to respond to the request within fifteen days of its receipt, or the complainant's response does not address the agency's request, provided that the request included a notice of the proposed dismissal. Generally, however, the Commission has held that an agency should not dismiss a complaint when it has sufficient information upon which to base adjudication. See Ross v. U.S. Postal Serv., EEOC Request No. 05900693 (August 17, 1990); Brinson v. U.S. Postal Serv., EEOC Request No. 05900193 (April 12, 1990).
The Agency's June 4, 2015, final determination on this matter states that Complainant did not present her claims to the EEO counselor. Nonetheless, the EEO counselor's report reflects that Complainant provided the EEO Counselor assigned to her case sufficient information to identify the events and actions on which her claims are based, the relevant timeframes, and the responsible management officials. They are outlined in the EEO Counselor's report. This is sufficient information to permit management and witnesses to respond to Complainant's allegations. See Hearl v. United States Postal Service, EEOC Appeal No. 0120082505 (July 28, 2008).
Whether or not the information Complainant provided is sufficient evidence to support her claim of discrimination can only be addressed in an adjudication of the merits of her complaint. However, it is sufficient for the Agency to proceed with an investigation into Complainant's claims. We find Complainant raised the issues with the EEO counselor.
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED. The complaint is hereby REMANDED to the Agency for further processing in accordance with this decision and 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.
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 tends 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 andthe 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
Carlton M. Haden, Director
Office of Federal Operations
January 8, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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