0120160754
03-01-2016
Becky N.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Becky N.,1
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120160754
Agency No. ARFTLEAV15AUG02855
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated October 21, 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 events giving rise to this complaint, Complainant worked as an Instructor/Writer (GS-13) on the faculty of the Army Management Staff College ("AMSC") in Fort Leavenworth, Kansas.
On September 24, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to harassment resulting in a hostile work environment and discrimination on the bases of race (Asian) and sex (female) when:
1. On July 29, 2015, she learned that the Director of the AMSC Intermediate Course, had paired her to teach the course with a co-worker ("CW") she previously had conflicts with throughout March and June 2014;
2. In April 2015, CW, apologized to the staff, individually, including Complainant, for speaking in an Asian accent while vacuuming in the office cubicles;
3. In April 2015, Complainant's Senior Enterprise Talent Management ("SETM") enrollment packet was delayed by six weeks, while CW's enrollment packet into another program was processed without incident; Complainant and CW were the only instructors to submit advanced training packets for approval;
4. In November 2014, Complainant was not selected as an interim Intermediate Course (IC) Director in favor of a less experienced co-worker (female, race undisclosed)
5. On unknown dates, Complainant's requests for CP32 funds were denied.
When she brought this complaint, Complainant was one of the most senior instructors, having taught the Intermediate Course ("IC") for 7 years. Complainant alleges that even though her supervisors are on notice that CW has harassed her in the past and made degrading comments about Asians, that she has been partnered with him for ten out of eighteen months, which was an unusually high amount. She also asserts that her supervisors contribute to the hostile work environment by placing her at a professional disadvantage, and impeding her employment mobility by passing her over positions in favor of less qualified candidates, failing to award funding and delaying her training application.
On July 29, 2015, the new schedule was posted and Complainant saw that she was once again paired with CW, despite having informed her supervisors that he made her uncomfortable, so she filed the instant complaint.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107, on two grounds: Claim 1 as moot under � 1614.107(a)(5) and Claims 2, 3, 4, and 5 as untimely under � 1614.107(a)(2).
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any aggrieved employee or applicant for employment 29 C.F.R. �� 1614.103, .106(a) 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994)who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition.
Claim 1
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. An issue raised within a claim will be considered moot if (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 IC is taught by a pair of "co-facilitators" or teaching partners. Complainant and CW were first assigned as "co-facilitators" of an IC in 2013. Complainant reported CW to the IC Director for harassment three times that June because he kept texting her personal cell phone to let her know he would be late or miss class. Although this type of communication is considered "professional courtesy" among Complainant's colleagues, she made it clear that she is not to be texted on her personal cell phone and CW ignored her request. When celebrating the graduation of their class, CW apologized, then argued with Complainant as to why he should be able to text her. Complainant felt pressured so she walked away. Complainant and CW were partnered again for four to six months in 2014. During this time, CW used an offensive Asian accent in front of several colleagues. The Interim IC Director counseled CW that his conduct was unacceptable. Although most of the faculty, including Complainant, was not present for the offensive comment, CW personally apologized to each faculty member, in a way that made Complainant feel uncomfortable.
Despite the July 19, 2015 schedule pairing Complainant and CW together yet again, we find that the Agency sufficiently demonstrated, and the record supports that there is no reasonable expectation that the alleged scheduling violation will reoccur. Specifically, the past two schedules pairing CW and Complainant were drafted by the previous IC Director and an Interim Director. A permanent Director ("D") (race undisclosed, male) started on May 28, 2015. When he paired CW and Complainant in the July 19, 2015 schedule, both approached him separately requesting to switch partners. D changed the schedule immediately so that CW and Complainant did not work together even prior to the schedule change. D also informed them both separately that he would avoid pairing them as co-facilitators in the future.
On appeal, the Agency further provides that it switched CW from instructing IC to the Advanced Course, which "completely eliminated the possibility that CW and Complainant would be paired together again." We note also, that in her formal complaint, Complainant did not seek compensatory damages.
The Agency's dismissal of Claim 1 on the basis of mootness was proper.
Claims 2, 3, 4, and 5
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. In the instant complaint, Complainant initiated contact with an EEO Counselor on August 5, 2015. Claims 2, 3, 4 and 5 all occurred over forty-five (45) days prior to that date.
On appeal, Complainant argues that the Agency erred when it viewed her claims as discrete incidents, when they instead should be considered as one continuing violation. She further argues that because Claim 1 falls within the forty-five (45) day limitation period, all five of her claims should be considered timely. (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002)) This Commission has held that "[b]because 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." Morgan 536 U.S. 101, 117 However, as discussed above, Complainant's only timely claim is moot, so Morgan does not apply.
Claims 2, 3, 4 and 5 were properly dismissed for untimely contact with an EEO counselor pursuant to � 1614.107(a)(2).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (S0610)
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. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M.
Carlton M. Hadden, Director
Office of Federal Operations
March 1, 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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