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
2
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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