0120110813
12-02-2011
Jaime J. Longoria, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Jaime J. Longoria,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120110813
Agency No. ARCCAD10AUG03646
DECISION
Complainant filed a timely appeal with this Commission from a final
Agency decision (FAD) dated October 1, 2010, dismissing his complaint
of unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §
791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Electrician Helper at the Agency’s Corpus Christi Army Depot
facility in Corpus Christi, Texas. On September 13, 2010, he filed a
formal complaint alleging that the Agency subjected him to discrimination
on the bases of disability (brain injury and post traumatic stress
disorder (PTSD)) and reprisal for prior protected EEO activity under
the Rehabilitation Act which occurred on August 10, 2010,1 when he was
harassed, as supported by the following incidents:
1. on May 7, 2010, he told his supervisor (S1) that he had an interview
for an Equipment Specialist job, and S1 replied that that he did not
belong here and was in the wrong field because he was too heavily
medicated, unstable, and may have a panic attack;
2. on August 11, 2010, (a) S1 commented to Complainant’s co-workers
that some people, like Complainant, don’t want to be here, he does not
belong, this is not his field, and he is just passing through; and (b)
Complainant realized he was discriminated against based on disability
when he was not selected for an Electrician position in January 2009;
3. on August 18, 2010, after asking his co-worker if S1 ever mentioned
anything about his being on medication, the co-worker said that about
nine months to a year prior, S1 told him Complainant looked “stoned”
and “out of it,” due to all the medication he takes, and sometimes
feels like killing everyone in the shop;
4. on August 20, 2010, after S1 received an email that Complainant
had an appointment scheduled with an EEO counselor on August 23, 2010
(which was made by the union), S1 repeatedly loudly accused Complainant
of bypassing his office, saying everything needs to go through him,
and yelled he works for him, not the union or EEO; and
5. on September 10, 2010, while he and a co-worker were cooling off after
working through their break on a hot day in hot shack, S1 confronted him
about messing around and not cleaning things up, and pointed his finger
and yelled at him, loudly enough for there to be spectators.2
The Agency dismissed claim 2(b) for failure to timely initiate EEO
counseling. It reasoned that Complainant contacted an EEO counselor
in August 2010, beyond the 45 calendar day time limit, and he had a
reasonable suspicion of discrimination more than 45 calendar days prior
to the contact.
The Agency dismissed the remainder of the complaint for failure to state
a claim. 29 C.F.R. § 1614.107(a)(1). It reasoned that it did
not rise to the level of actionable harassment, that the incidents would
not chill EEO activity, and Complainant was not disciplined in connection
with the incidents.
ANALYSIS AND FINDINGS
An aggrieved person must seek EEO counseling within 45 days of
the date of the alleged discriminatory action, or in the case of a
personnel action, within 45 days of the effective date of the action.
29 C.F.R. § 1614.105(a)(1) & .107(a)(2). The time limit to seek
EEO counseling shall be extended when an individual shows he did not
know and reasonably should not have known that the discriminatory
action or personnel action occurred. 29 C.F.R. § 1614.105(a)(2).
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
On appeal, Complainant argues that his allegations demonstrate a pattern
of his supervisor speaking badly about him and preventing him from
getting promotions. Regarding claim 2(b), in opposition to the appeal,
the Agency argues that Complainant asked S1 why he was not selected around
February 2009, but did not initiate EEO counseling until August 2010.
In his complaint, Complainant suggested that he did not accept S1’s
answer then since he knew he was more than qualified and the negative
feelings S1 had about him and displayed were affecting his career.
Complainant also contended that on May 7, 2010, S1 told him he did
not belong here and was in the wrong field because he was too heavily
medicated, unstable, and may have a panic attack. Given this, we find
Complainant had a reasonable suspicion of discrimination about not being
selected in January 2009, a discrete incident, more than 45 calendar
days prior to initiating EEO counseling. Accordingly, claim 2(b)
is dismissed.3
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find [it]
hostile or abusive” and the complainant subjectively perceives it
as such. Harris, at 21-22. Thus, not all claims of harassment are
actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
The Commission has a policy of considering reprisal claims with a
broad view of coverage. See Carroll v. Department of the Army, EEOC
Request No. 05970939 (April 4, 2000). Under Commission policy, claimed
retaliatory actions which can be challenged are not restricted to those
which affect a term or condition of employment. Rather, a complainant
is protected from any discrimination that is reasonably likely to deter
protected activity. See EEOC Compliance Manual Section 8, "Retaliation,"
No. 915.003 (May 20, 1998), at 8-15; see also Carroll.
On appeal, Complainant argues that he was harassed, and that incident
4 involved S1 yelling at him for going to EEO, which would discourage
him from seeking EEO counseling. In opposition to the appeal, the
Agency argues that Complainant’s claims do not rise to the level of
actionable harassment, and that incident 4 involved the requirement to
notify S1 of an EEO appointment, and this would not chill EEO activity.
We find that claims 1, 2(a), 3, 4 and 5, taken together, state a claim
of actionable harassment. All the alleged incidents were perpetrated
by Complainant’s supervisor, and most were within a month of each
other, frequently enough given their severity to create an abusive work
environment. One alleged incident was particularly severe, i.e., S1
previously telling Complainant’s co-worker that Complainant felt like
killing everyone in the shop, which Complainant learned about in August
2010. There are also two alleged incidents of screaming at Complainant,
one of which allegedly had spectators. Also, S1 allegedly screaming at
Complainant about the union making an appointment for him to see an EEO
counselor, without going through S1, could reasonably deter EEO activity.
The Agency’s dismissal of claim 2(b) is AFFIRMED. The Agency’s
dismissal of the remainder of the complaint is REVERSED.
ORDER
The Agency is ordered to process the remanded claims, as defined herein,
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 (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 (T0610)
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 (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 2, 2011
__________________
Date
1 In its FAD, the Agency defined the date as August 18, 2010, citing
this as when Complainant contacted an EEO official. The counselor’s
report indicated he initiated contact on August 10, 2010.
2 While the above definition tracks the Agency’s characterization of
the complaint, we added more detail.
3 However, the non-selection may be used as background evidence in
the adjudication of Complainant’s hostile work environment claim
discussed below.
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0120110813
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110813