0120162177
12-28-2017
Christena H.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Christena H.,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120162177
Hearing No. 490-2014-00121X
Agency No. FS-2013-00700
DISMISSAL OF APPEAL
On June 13, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the June 1, 2016 final Agency action implementing an Equal Employment Opportunity Commission Administrative Judge's (AJ) decision to procedurally dismiss 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 Office Automation Clerk at the Agency's Ouachita Job Corps Conservation Center in Royal, Arkansas.
On July 15, 2013, Complainant filed a formal complaint, as amended, which the Agency defined as her being subjected to discrimination and harassment by it based on race (Associational [White married to Black spouse]), sex (female), and reprisal for protected EEO activity (under Title VII) when:
1. beginning on December 17, 2012, she was subjected to various acts of sexual harassment, such as:
a. on December 17, 2012, a student informed her that he has a "9-inch penis;"
b. on December 21, 2012, the same student sexually assaulted her by touching her buttocks;
c. between March 2013 and May 2013, a different individual at the Center routinely stared at her buttocks and made various sexual remarks to her including:
i. telling her that her "butt" looked "nice;"
ii. warning her to "lock all the doors" if the center closed, because he was going to come "to grab [her] butt" and
iii. informing her that he had "made bets on whose butt was the nicest on Center and [her] butt won by far!";
d. on or about April 22, 2013, yet another individual "made flirty remarks towards [her] about [her] appearance, [her] eyes, face;"
e. on June 3, 2013, a different student repeatedly asked for a hug, and after she said no, followed her to her office and hugged her without her permission; and
f. on June 3, 2013, the same student showed her a picture of his penis on his mobile phone, told her he wanted "to do the do with [her]" before he left the Ouachita Job Corps Center (Center), and after she asked him to leave her office, hugged her again without her permission;
2. on various dates, including on December 21, 2012, January 2, 2013, June 3, 2013, June 11, 2013, and on other unspecified dates, she complained to various FS management and FS law enforcement officials about the aforementioned sexual harassment, but they failed to take appropriate steps to protect her from further harassment and routinely discouraged her from pursuing her complaints;
3. on June 7, 2013, management revised the Center dress code policy and selectively enforced it against her, resulting in her having to return home because she was in violation of the policy and take annual leave for the remainder of the day;
4. on or about June 11, 2013, her second level supervisor denied her request for administrative leave for time she used to complain to officials at the Headquarters Supervisors Office about the aforementioned sexual harassment;
5. on or about June 13, 2013, her second level supervisor instructed her to use annual leave for time she spent talking to law enforcement officers on her cell phone about the aforementioned sexual harassment;
6. on various dates, she was subjected to additional acts of harassment, such as:
a. January 8, 2013, her supervisor gave her a verbal warning for talking on her cell phone;
b. on June 7, 2013, her supervisor told her to stop giving newspapers to her husband, as they were considered government property;
c. on June 24, 2013, she was counseled about her Time and Attendance (T&A);
d. on October 15, 2013, she learned that her supervisor was conspiring [to] revise the Center visitor policy to prohibit her husband from coming to the Center to have lunch with her and from speaking with Center staff;
e. on December 13, 2013, the Support Services Supervisor (SSS) intentionally neglected to inform her that she should use "Code 66" on her T&A report for December 6, 2013, requiring her to correct her T&A after her report was rejected;
f. on December 13, 2013, the SSS accused her of leaving a check in the copier and failed to have a union representative present during the conversation;
g. on December 17, 2013, management attempted to prevent her representative from attending a meeting to discuss concerns related to her EEO complaint;
h. on December 27, 2013, the SSS gave her conflicting guidance on the process for requesting overtime; and
i. since she filed the subject EEO complaint, the SSS has harassed her regarding her use of sick leave;
7. on October 11, 2013, her supervisor gave her a negative performance rating, informed her that she was receiving the rating, in part, because she had filed an EEO complaint, and threatened that she would only provide the Complainant with training if she refrained from filing future complaints;
8. on October 14, 2013, her supervisor denied her request for a meeting with the Center Director to discuss the reconsideration of the aforementioned performance rating;
9. on an unspecified date after she filed the subject EEO complaint, her request for government housing was denied;
10. effective November 11, 2013, she was reassigned to the Counseling Department for 4 days each week; ...
11. since November 11, 2013, management requires her to complete a week's worth of work on the 1 work day she spends in the Administration Office;
12. on or about March 1, 2014, she and her representative were removed from the worksite while she was working on her EEO complaint;
13. on March 4, 2014, management banned her designated representative from the worksite and denied her request to access her FS electronic mail from home;
14. on March 6, 2014, she was issued a Letter of Warning;
15. on March 12, 2014, she was denied time to work on her EEO complaint;
16. on March 24, 2014, management issued her an incorrect Position Description for her new position;
17. on or after March 24, 2014, management refused to train her on her new duties and assigned her duties that would result in a low performance evaluation;
18. on April 1, 2014, her request for training was denied and she learned that her supervisor had been directed to "hold back" such training; and
19. on several dates, she was subjected to various additional incidents of harassment, such as:
a. on or about March 1, 2014, she was yelled at while working on her EEO complaint and instructed her to notify her supervisor before coming on the worksite when not on duty and to sign the log book, while, on March 31 or April 1, 2014, her coworker was not subject to the same requirements;
b. on March 10, 2014, management failed to respond to her request for the policy limiting the amount of time employees could spend working on their EEO complaints to 8 hours;
c. on March 28, 2014, she learned that management failed to train her on the PAG policy, effective June 2013; and
d. on April 7, 2014, management failed to respond to her coworker's disparaging comments about her lunch.
Following an investigation, Complainant requested a hearing before an Equal Employment Opportunity Commission AJ. Thereafter, the Agency conducted a supplemental investigation on issues Complainant had added by amendment.
By letter to the AJ dated May 13, 2016, Complainant wrote that more than 180 days elapsed since she filed her complaint, and she requested that the Commission immediately issue a "right-to-sue" letter. Interpreting this to be a request to withdraw her hearing request, on May 16, 2016, the AJ dismissed Complainant's request for a hearing and ordered the Agency to issue a "Final Agency Decision" on the case. On June 1, 2016, the Agency issued a final order to "fully implement the EEOC AJ's Order." The instant appeal followed.
On September 1, 2016, Complainant filed a civil action (identified as Civil Action No. 2:16-cv-00907), as amended, in the United States District Court for the District of Utah, which on February 28, 2017, was transferred the United States District Court for the Western District of Arkansas under new civil action number 6:17-cv-06024.2 The claims raised therein are the same as those raised in the instant complaint. The regulation found at 29 C.F.R. � 1614.409 provides that the filing of a civil action "shall terminate Commission processing of the appeal." Commission regulations mandate dismissal of the EEO complaint under these circumstances to prevent a Complainant from simultaneously pursuing both administrative and judicial remedies on the same matters, wasting resources, and creating the potential for inconsistent or conflicting decisions, and in order to grant due deference to the authority of the federal district court. See Stromgren v. Dep't of Veterans Affairs, EEOC Request No. 05891079 (May 7, 1990); Sandy v. Dep't of Justice, EEOC Appeal No. 01893513 (October 19, 1989); Kotwitz v. U.S. Postal Serv., EEOC Request No. 05880114 (October 25, 1988).
Accordingly, Complainant's appeal is hereby dismissed. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
December 28, 2017
__________________
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.
2 The electronic docket for latter District Court indicates that as of December 26, 2017, Complainant's civil action is still pending.
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