0120121235
12-07-2012
Diane Mazurek, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Diane Mazurek,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120121235
Agency No. ARFTLWOOD11MAR01409
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated July 1, 2011, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Waiter/Server at the Agency's Pershing Community Center facility in Fort Leavenwood, Missouri. On June 2, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), disability (Bipolar Disorder and Carpal Tunnel Syndrome), and age (47) when:
1. Complainant was subjected to harassment.
The Agency dismissed the claim on various grounds, finding that Complainant's EEO Counselor contact was untimely, she failed to cooperate with the Counselor, her Formal Complaint raised bases not raised before the Counselor, and she failed to state a claim.
ANALYSIS AND FINDINGS
We note initially that we find the appeal to have been timely-filed. The Agency on appeal requests that the appeal be dismissed as untimely, arguing that the Dismissal was issued on July 1, 2011 but that Complainant's did not file an appeal with this Commission until August 18, 2011. Under 29 C.F.R. � 1614.402 appeals must be filed within 30 days of receipt and under � 403(a)(d) the Commission shall dismiss untimely appeals. We note, however, that the record does not contain a certificate of service or other record showing when Complainant received the Dismissal. The record does contain a Certified Mail Receipt showing Complainant was sent a document from the Agency on June 14, 2011 and that she signed for it on June 21, 2011. However since the Agency claims the Dismissal was issued on July 1, 2011 and not June 14, the Certified Mail Receipt must refer to some other document and not the Dismissal. Since the Agency has not shown when Complainant received the Dismissal, we decline to find that the appeal was untimely.
The Agency found that the claim should be dismissed because Complainant raised bases that were not raised before the Counselor. We note, however, that pursuant to 29 C.F.R. � 1614.106(d), a Complainant may amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the Complaint. While � 1614.107(a)(2) states that the Agency shall dismiss a complaint that raises 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, we find that such a provision does not apply in this case. The EEO Counselor's report notes that Complainant stated that
she has been made to feel she has no worth due to a Supervisor . . . making demeaning remarks about her and knowing she has some mental disabilities. She claims that [the supervisor] got in her face screaming at her causing her to get so upset until she felt personally attacked,
and "she made a decision to have another meeting with him knowing how threatened she felt by his presence." Informal Complaint. In her Formal Complaint, Complainant recounts how during a group meeting where employees were being shown a video, the same Supervisor said about Complainant in front of everyone "this reminds me of you" in reference to "a very talkative animated Server [in the video] who was clearly unfocused." Formal Complaint. Complainant further stated that the Supervisor aggressively called her into a meeting in his office and spoke to her "with a red rage [sic] face with his face inches from mine spittle hitting me in the face." Id. Finally, she said she had to meet with the same Supervisor "before I could work again." Id. Thus we find that the matters raised in the Informal Complaint were again raised in the Formal Complaint. In addition, the Formal Complaint contains additional examples of alleged harassment by the same Supervisor which are like or related to the instances alleged in the Informal Complaint, as well as additional bases, and Complainant is entitled to make such amendments under 29 C.F.R. � 1614.106(d).
With regard to the Dismissal's finding that Complainant's EEO Counselor contact was untimely, we note that 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. We further note that the Dismissal provides no basis for its finding that the Counselor contact was untimely. Specifically, the Dismissal does not indicate when the alleged events occurred, nor does the Agency address the issue of untimely Counselor contact on appeal. We note, however, that the Informal Complaint form states that the date of the alleged discriminatory action was March 13, 2011, while the date of Counselor contact was March 30, 2011. We therefore find the Counselor contact to have been timely.
With regard to the Agency's finding that Complainant failed to state a claim, we note that Complainant alleged that she was subjected to harassment when a Supervisor knowingly mocked her disability in front of coworkers, yelled at her and acted very aggressively, and constantly "picked on" her and "degraded" her. We find such allegations sufficient to state a claim of hostile work environment based on disability.
Finally we note that EEOC Regulation 29 C.F.R. � 1614.107(a)(7) provides that the Agency shall dismiss 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 failed to respond to the request within fifteen days of its receipt or the response does not address the agency's request. In enforcing this regulation, the Commission has held that where the Complainant has engaged in delay and contumacious conduct and the record is insufficient to permit adjudication, the Commission will affirm the Agency's dismissal of a complaint on the grounds of failure to prosecute or cooperate. See Dipple v. Department of Defense, EEOC Appeal No. 01A41939 (Nov. 17, 2004). As a general rule, an Agency should not dismiss a complaint when it has sufficient information on which to base an adjudication.
In the present case we find insufficient evidence that Complainant engaged in contumacious conduct, as opposed to simple negligence, in regard to the processing of the instant complaint. Moreover, a review of the Formal complaint and EEO Counselor's Report indicates that Complainant provided extensive information about her allegations of discrimination. The record reflects the reasons Complainant felt that she was discriminated against and contains specific information regarding the discriminatory actions, the name of the alleged discriminatory official, and the corrective action sought. We therefore find that dismissal pursuant to 29 C.F.R. � 1614.107(a)(7) was improper. We nevertheless take this opportunity to remind Complainant of her duty to cooperate with the EEO investigator.
CONCLUSION
For the above reasons we REVERSE the Agency's Dismissal and REMAND the claim to the Agency for additional processing.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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 (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 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 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 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
December 7, 2012
__________________
Date
2
0120121235
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121235