Kelly F. Raulerson, Complainant,v.Ray H. LaHood, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.

Equal Employment Opportunity CommissionDec 7, 2009
0120093521 (E.E.O.C. Dec. 7, 2009)

0120093521

12-07-2009

Kelly F. Raulerson, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.


Kelly F. Raulerson,

Complainant,

v.

Ray H. LaHood,

Secretary,

Department of Transportation,

(Federal Aviation Administration),

Agency.

Appeal No. 0120093521

Agency No. 200922595FAA03

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated July 21, 2009, dismissing her complaint of unlawful

employment discrimination alleging violations of Title VII of the Civil

Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and

the Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d) et seq.

At the time of the events at issue, complainant was employed by the

Federal Aviation Administration as a Front Line Manager in the Daytona

Beach, Florida Air Traffic Control Tower. On March 10, 2009, complainant

initiated contacted with an agency EEO counselor and, on June 29, 2009,

filed a formal EEO complaint.

In her complaint alleging discrimination on the bases of sex (female)

and subsequent reprisal, complainant claimed that she had been subjected

to ongoing harassment sufficient to create a discriminatory hostile

work environment (claim 1). In support of her claim of harassment,

complainant appended 12 typed pages to her formal complaint outlining

events that occurred from her assignment to the Temporary Supervisory

position in May 2008 though March 2009. Examples of the harassment

provided by complainant included the following alleged events:

1. On May 19, 2008, the Operations Manager told complainant that she was

not his pick for the supervisory position "[b]ecause [she has] a kid"

and questioned her loyalty and reliability.

2. The Operations Manager made attempts to sabotage complainant's work.

3. The Operations Manager bad-mouthed complainant to her co-workers,

her subordinate employees, and management including questioning her

loyalty and reliability on the job.

4. The Operations Manager used abusive, offensive, and crude language

towards complainant which would make her feel humiliated.

5. On February 23, 2009, complainant went to speak with the Operations

Manager regarding supervisory coverage. The discussion got heated and

the Operations Manager began yelling at complainant. Complainant said

she was leaving his office, and the Operations Manager went around the

desk and got into complainant's face. With his shoulder, the Operations

Manager hit complainant's shoulder and reached across her face to keep

the door shut so complainant could not exit. Complainant screamed,

"let me out, but the Operations Manager continued to try to keep the

door shut. The Air Traffic Manager was walking by and intervened by

pushing the door opened while the Operations Manager continued to try to

push it shut. Complainant left the office with the Air Traffic Manager.

Complainant was hysterical and discovered bruises on her right arm due

to the door. Complainant reported the incident, but stated it was not

taken seriously by management.1

In addition to her harassment claim, complainant also raised a

compensation claim (claim 2), alleging that in August 15, 2008,

complainant received a permanent promotion, but believed she did not

get the same salary increase as similarly situated males.

In its final decision, the agency dismissed the harassment/hostile work

environment claim (claim 1) pursuant to 29 C.F.R. � 1614.107(a)(1) for

failure to state a claim. The agency also dismissed the compensation

claim (claim 2) pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO

counselor contact. The instant appeal followed.

With regard to claim 1, the agency found that complainant failed to

show that she was aggrieved by the alleged harassment. The regulations

set forth at 29 C.F.R. �� 1614.103 and .106(a) provide that an agency

shall accept a complaint from any aggrieved employee or applicant for

employment who believes that he or she has been discriminated against by

that agency because of race, color, religion, sex, national origin, age or

disabling condition. The Commission's federal sector case precedent has

long defined an "aggrieved employee" as one who suffers a present harm

or loss with respect to a term, condition, or privilege of employment

for which there is a remedy. Diaz v. Department of the Air Force,

EEOC Request No. 05931049 (April 21, 1994).

Where, as here, a complainant has not alleged disparate treatment

regarding a specific term, condition, or privilege of employment,

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, 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, age 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). Applying these principles

and upon review of the record, we find that complainant has alleged

events, which if taken together, are sufficient to state a viable claim

of harassment. Therefore, the agency's dismissal of this claim was

improper and is reversed.

The agency also dismissed the complainant's compensation claim arising

from her promotion in August 2008, indicating that she initially

raised it with an EEO counselor on March 10, 2009, well beyond the

expiration of the 45-day time limit period required by EEOC Regulation

29 C.F.R. �1614.107(a)(2).

However, the usual 45-day limitation period must be viewed differently

in a case alleging discriminatory compensation. The Lilly Ledbetter

Fair Pay Act of 2009, Public Law 111-2 (S 181), became law on January

29, 2009. The Act is effective May 28, 2007, and applies to all claims

of discrimination in compensation under Title VII, the ADEA, and Title

I and Section 503 of the Americans with Disabilities Act of 1990 and

Sections 501 and 504 of the Rehabilitation Act pending on or after that

date. Regarding Title VII, it provides:

[A]n unlawful employment practice occurs, with respect to discrimination

in compensation in violation of this title, when a discriminatory

compensation decision or other practice is adopted, when an individual

becomes subject to a discriminatory compensation decision or other

practice, or when an individual is affected by application of a

discriminatory compensation decision or other practice, including each

time wages, benefits, or other compensation is paid, resulting in whole or

in part from such a decision or other practice . . . [Relief may include]

recovery of back pay for up to two years preceding the filing of the

charge, where the unlawful employment practices that have occurred during

the charge filing period are similar or related to unlawful employment

practices with regard to discrimination in compensation that occurred

outside the time for filing a charge.

Here, complainant contends that she continued to be affected by the

application of the discriminatory compensation decision made when she

was initially promoted by continuing to receive lower paychecks than

similarly situated male employees. Therefore, she asserts she was

still receiving allegedly discriminatory paychecks during that period

up to and including the 45 day period prior to her EEO counselor contact

March 10, 2009. In light of this allegation, we find that complainant's

counselor contact concerning the compensation claim was timely made and

the agency's dismissal of it is reversed.

Accordingly, the agency's final decision dismissing complainant's

complaint is REVERSED. The complaint is hereby REMANDED to the agency

for further processing in accordance with this decision and the ORDER

below.

ORDER (E0408)

The agency is ordered to process the remanded claims (harassment/hostile

work environment and compensation 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

December 7, 2009

__________________

Date

1 On appeal, complainant asserts that she later filed a worker's

compensation claim for post traumatic stress disorder resulting from

the incident, which she claims was approved.

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2

0120093521

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120093521