0120091096
06-09-2009
Eileen U. Doherty, Complainant, v. Paul Prouty, Acting Administrator, General Services Administration, Agency.
Eileen U. Doherty,
Complainant,
v.
Paul Prouty,
Acting Administrator,
General Services Administration,
Agency.
Appeal No. 0120091096
Agency No. 08-R9-GMA-SF-15
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated December 5, 2008, 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. Upon review, the Commission finds that complainant's complaint
was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for
untimely EEO Counselor contact.
During the pertinent period, complainant was a Human Resources Specialist
at a California office of the agency. On July 14, 2008, complainant
initiated contact with an EEO Counselor alleging that, between January
and June 2008, she was subjected to sexual harassment by her first
(S1), second (S2), and third level supervisors (S3). Subsequently, in
her August 6 pre-complaint for counseling, complainant alleged that the
agency retaliated against her for prior EEO activity when, on July 21,
2008, S2 issued her a Notice of Proposed Removal. Complainant later
stated that she was removed from employment effective October 4, 2008.
Further, complainant amended her claim to allege that sexual harassment
began in February 2005.
Specifically, complainant alleged that, since February 2005, S1 and S2
made sexually suggestive and offensive statements and that, on January
31, 2008, S3 locked his office door and sexually battered her although
she pled for him to stop. Complainant alleged that S3 did not stop
until she yelled that someone was coming. Further, complainant alleged
that on, February 8, 2008, S3 began contacting her on her work phone,
personal cell phone, and email, and asserting his position as her third
level supervisor to make her visit his office. Complainant alleged
that S3 sexually assaulted her several other times and stalked her.
She stated that she was afraid to report his actions for fear of reprisal.
She added that she was able to avoid S3 only when he traveled and was
able to hold on because she knew that he planned to retire soon. Also,
complainant stated that she had a meeting with her direct supervisor,
S1, about work matters, and that she broke down crying and telling him
how S3 was harassing her. Lastly, complainant alleged that, on June
28, 2008, S3 contacted her on her cell phone from an unrecognizable
number and text messaged, "What are you doing?" She stated that she
learned it was S3 after replying to inquire about the sender's identity.
Complainant stated that S3 was no longer in the workplace on June 281,
but she feared that he still had influence in the office and would show
up there. Complainant indicated that, in June, she contacted the EEO
office after she was not contacted following her meeting with S1.
In its final decision, the agency dismissed complainant's complaint,
stating that the June 28, 2008 incident she cited was not sexual in
nature and the last sexual incident by a supervisor was April 29, 2008,
which renders her EEO contact untimely. The instant appeal, without
substantive comment, from complainant followed.
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides, in pertinent part,
that the agency shall dismiss a complaint or a portion of a complaint
that fails to comply with the applicable time limits contained in
� 1614.105, unless the agency extends the time limits in accordance
with � 1614.604(c). Regulation 29 C.F.R. � 1614.105(a)(1) provides
that an aggrieved person must initiate contact with an EEO 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.
A complainant alleging a hostile work environment will not be time barred
if all acts constituting the claim are part of the same unlawful practice
and at least one act falls within the filing period. See National
Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). In the
case at hand, we find that complainant alleged (sexual) hostile work
environment harassment when she initiated contact with an EEO counselor
on July 14, 2008, and that she alleged severe and pervasive conduct by
S3 including a personal text message on June 28, 2008, as evidence to
support her claim of harassment. Also, we find that complainant alleged
a retaliatory removal, proposed on July 21 and effectuated October 4,
to support her claim further. We find that the June 28 incident that
complainant alleged as part of the sexual harassment falls within the
45-day filing period and renders timely complainant's claim. Upon careful
review of the record and based on the above, the Commission REVERSES the
agency's final decision and REMANDS it consistent with this decision
and the Order below. We note that the record is confusing regarding
the status of the agency's processing of the removal claim; so, to the
extent that the agency has not already processed the removal claim,
it is remanded to the agency with the sexual harassment claim as part
of the Order below.
ORDER (E0408)
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.
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 (K1208)
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 (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
June 9, 2009
__________________
Date
1 The agency noted that S3 retired effective May 2, 2008.
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0120091096
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091096