Hugh G. Lacy, Complainant,v.John M. McHugh, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionNov 12, 2009
0120092911 (E.E.O.C. Nov. 12, 2009)

0120092911

11-12-2009

Hugh G. Lacy, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.


Hugh G. Lacy,

Complainant,

v.

John M. McHugh,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120092911

Agency No. ARCEHUNTV09MAR01346

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated May 21, 2009, dismissing his formal 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.

On March 4, 2009, complainant initiated EEO Counselor contact.

Informal efforts to resolve his concerns were unsuccessful.

On April 27, 2009, complainant filed the instant formal complaint.

Therein, complainant claimed that he was subjected to discrimination

on the bases of race, sex, disability, age and in reprisal for prior

protected activity when:

a. on March 16, 2009, complainant was subjected to harassment and a

hostile work environment because management assigned him additional work

and sent him excessive emails;

b. on February 23, 2009, he received a Humanitarian Award, that was

unframed and not dated, for his service during Hurricane Katrina in 2005.

However, a white female employee without disabilities received her

award framed. Complainant alleged that the award was presented to him

on or about "one year ago or longer;"

c. on February 5, 2009, he did not receive a letter of endorsement from

his supervisor for a developmental assignment. Complainant further

claimed that his performance appraisal was not available to him "until

the original deadline for a developmental assignment;"

d. on February 2, 2009, management denied his request for long term

training and recommended training to "assist you in doing your job and

to relieve stress." Complainant claimed that white employees without

disabilities have received requested training "that will help advance

their careers;" and

e. on January 13, 2009, he did not receive "as high performance

ratings or as high monetary awards as younger female employees without

disabilities."

On May 21, 2009, the agency issued a final decision dismissing claims a -

e for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1).

The agency found that the matters identified in claims a - e were isolated

incidents that were neither sufficiently severe nor pervasive to rise

to the level of harassment. The agency also dismissed claims b, d and

e on the alternative grounds of untimely EEO Counselor contact pursuant,

to 29 C.F.R. � 1614.107(a)(2). The agency determined that complainant's

initial EEO Counselor contact was on March 4, 2009, which was beyond

the 45-day limitation period.

On appeal, complainant asserts that the agency improperly fragmented his

formal complaint. Complainant further asserts that his claims constitute

a "continuing violation" and therefore timely.

As a threshold matter, the Commission determines that the agency

improperly fragmented complainant's complaint in its final decision.

A fair reading of the record reflects that complainant raises

a harassment/hostile work environment claim. The matters identified

in the agency's final decision are incidents comprising complainant's

harassment claim.

Failure to state a claim

The agency improperly dismissed claims a - e for failure to state a claim.

The record reflects that complainant claims that he has been subjected

to harassment and a hostile work environment by management when he

was assigned additional work and received excessive emails; received

an unframed award while a white female employee received her award

framed; did not receive a letter of endorsement from his supervisor

for a developmental assignment and his performance appraisal was not

available to him; his long term training request was denied while other

white employees without disabilities have received requested training

that would help them advance their careers; and he did not receive a high

performance ratings or monetary awards as younger female employees without

disabilities. These matters state an actionable claim of harassment.

See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March

13, 1997). Many of the agency's arguments in support of its dismissal

for failure to state a claim go to the merits of complainant's claims,

and cannot be appropriately considered at the dismissal stage before

an investigation has been conducted. See Ferrazzoli v. USPS, EEOC

Request No. 05910642 (August 15, 1991).

Untimely EEO Counselor contact

The agency also improperly dismissed claims b, d and e on the grounds

of untimely EEO Counselor contact. Complainant initiated EEO Counselor

contact on March 4, 2009. The Commission finds that "[b]ecause 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. This includes incidents that occurred

outside the filing period that the [complainant] knew or should have

known were actionable at the time of their occurrence." EEOC Compliance

Manual, Section 2, Threshold Issues at 2 - 75 (revised July 21, 2005)

(citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117

(2002)).

The record reflects that at least one of the incidents comprising of

complainant's hostile work environment claim occurred within the 45-day

time period preceding to complainant's March 4, 2009 EEO Counselor

contact. Specifically, complainant alleged that he was subjected to a

hostile work environment when after February 5, 2009, he did not receive a

letter of endorsement from his supervisor for a developmental assignment.

Based on the foregoing, we find that the agency improperly dismissed

claims b, d and e on the grounds of untimely EEO Counselor contact.

Accordingly, we REVERSE the agency's final decision dismissing

complainant's complaint, defined herein as a harassment claim, and we

REMAND this matter to the agency for further processing in accordance

with the ORDER below.

ORDER (E0408)

The agency is ordered to process the remanded claims (harassment claim)

in accordance with 29 C.F.R. � 1614.108 et seq. 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

November 12, 2009

__________________

Date

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0120092911

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120092911

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