0120091321
06-30-2009
Gerlina Adams, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Gerlina Adams,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120091321
Agency No. ARAPG08JUN03406
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 22, 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. and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. In its final decision, the agency dismissed the
complaint pursuant to 29 C.F.R. � 1614.107(a)(1) and (2) for failure
to state a claim and untimely EEO counselor contact. It is from this
decision that complainant now appeals.
At the time of the events at issue, complainant was employed by the agency
as an Office Automation Technician. In a complaint filed on August 28,
2008, complainant alleged that she was subjected to hostile workplace
discrimination on the bases of race (American Indian) and age (58).
The agency characterized the complaint as consisting of four basic
issues:
(1) On May 16, 2008, complainant gave her supervisor a DD Form 1556
to sign for another employee. When complainant asked her supervisor
if he had signed it, he stated that he had but was unable to find it.
Complainant's supervisor later found the document in the burn box.
(2) From February 2008, through March 5, 2008, complainant requested
that the Human Resource Specialist (HRS), Aberdeen Proving Ground
Civilian Personnel Action Center, conduct a desk audit to review the
work that she was performing in contrast to her position description.
The HRS advised complainant on how to try to change her job classification
either by appealing her current classification or applying for positions
in the classification she desired. Complainant alleged that this advice
was not helpful.
(3) On January 11, 2008, complainant received an email from her
supervisor in which he attempted to recount an in-person meeting between
the two regarding complainant's job responsibilities and a desk audit.
Complainant alleged that her supervisor's recounting of her job
responsibilities and his response regarding the desk audit were not
accurate.
(4) In 2007, a female, office contractor was hired as a secretary for
the branch in which complainant worked. Complainant alleged that while
she remained in the job series, Office Automation Technician (series
0326), she had wanted to have her job series changed to Secretary,
(series 0318). Complainant even temporarily had her series changed to
Secretary, from May 21, 2000 thru August, 2000, before being reversed
to her Office Automation Technician series. Complainant believed that
the selectee was hired because she is younger.
However, a fair reading of claim 1, in conjunction with the EEO counseling
report and resulting appeal, clarifies that complainant was also asserting
that "this is the latest of a continuing pattern of [her supervisor]
discarding her work." The record reflects that:
Complainant went to an EEO Officer (EO) on June 19, 2008 to report
what had happened. She indicated to the EO that her work had been
disappearing over the last year or longer. When her supervisor took
the observed actions, he knew what she had been going through with
the disappearance of work after it went to the head office. In fact,
[complainant's supervisor] was relying on the absence of completed
work in deciding he would not let her go back to her position as his
secretary after her doctor said she could return to her normal duties.
While the [selectee] was hired as a contractor to help complainant until
her backlog of work was caught up, instead the selectee had been given her
(complainant's) position as secretary because complainant's supervisor
wanted her out the door, and to show her that he could do anything
to her that he wanted, without any recourse. . . . From 10 Sep 00 GS
0326 - 27 Sep 08 GS 0326 (eight years, 17 days), complainant worked as
a Secretary, Office Administrative Assistant, and a Technical Editor.
Although technical editing was not in her job description, she did it
and did other duties as assigned by her supervisor without him ever
changing her "series". She did the work of a secretary, taking care of
the appointments, answering the phone, hosting meetings to include not
only breakfast but also lunches, and then, as a Technical Editor for
her last two years. She never was given a change in job series to a
Secretary 0318 or a Technical Editor Promotion or pay increase that was
of the same nature as her coworkers. On numerous occasions, complainant
asked her supervisor to change her series to a 0318 series to show that
she was a secretary, and so that when prospective supervisors looked
at her resume, they would know that she performed as a secretary. As a
result of the actions complained of, and relied upon by her supervisor
in not properly assessing the work done by complainant, she was never
permitted opportunities to serve as a division secretary . . . .
The Commission finds the agency's dismissal for untimely EEO Counselor
contact involving claims 2 through 4 to be proper. 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. The record indicates
that complainant first contacted an EEO counselor regarding these claims
on June 19, 2008, which is well beyond the 45-day limitation period.
Complainant has not provided adequate justification for extending this
time period. Therefore, the agency was correct in dismissing these
claims on timeliness grounds.
Concerning claim 1, the agency dismissed for failure to state a claim.
As already described, in her complaint and related EEO counseling
documents, complainant asserts that she is the victim of a hostile work
environment - created by her immediate supervisor. She alleges that
adverse actions were taken by her immediate supervisor to undermine her
work place efforts and to ultimately stymie her career advancement.
In determining whether a harassment complaint states a claim,
the Commission will examine whether a complainant's allegations,
when considered together and assumed to be true, are sufficient to
state a hostile or abusive work environment claim. See Estate of
Routson v. National Aeronautics and Space Administration, EEOC Request
No. 05970388 (February 26, 1999). Even if harassing conduct produces
no tangible effects, such as psychological injury, a complainant may
assert a cause of action if the discriminatory conduct was so severe
or pervasive that it created a work environment abusive to complainant
because of her race, gender, religion, national origin or disability.
Rideout v. Department of the Army, EEOC Appeal No. 01933866 (November
22, 1995) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22
(1993)) request for reconsideration denied EEOC Request No. 05970995
(May 20, 1999). In applying this standard, the Commission has commonly
found that isolated incidents of alleged harassment are not sufficient to
state a harassment claim. See Phillips v. Department of Veterans Affairs,
EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human
Services, EEOC Request No. 05940481 (February 16, 1995).
The Supreme Court has held that 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,
122 S.Ct. 2061 (June 10, 2002). The Court further held, however, that
"discrete discriminatory acts are not actionable if time barred, even
when they are related to acts alleged in timely filed charges." Id.
Finally, the Court held that such untimely discrete acts may be used as
background evidence in support of a timely claim. Id.
However, in this case, contrary to the agency's position, the totality of
the actions complained of, when taken together and assumed to be true, are
sufficiently frequent and/or severe to state a claim of a discriminatory
hostile work environment. Rideout v. Department of the Army, EEOC Appeal
No. 01933866 (November 22, 1995) (citing Harris v. Forklift Systems,
Inc., 510 U.S. 17, 22 (1993)). Further, claims 2 through 4 may serve
as background evidence in support of claim 1. Therefore, we reverse the
agency's dismissal of claim (1).
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed in part and reversed in part. Claim (1) is remanded
to the agency for processing in accordance with the following Order.
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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (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 30, 2009
__________________
Date
2
0120091321
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120091321