0120182405
09-25-2018
Kellye C,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kellye C,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120182405
Agency No. AREUBAV18MAR01265
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision, dated June 20, 2018, 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.
BACKGROUND
Complainant worked as a Supervisor at an Agency facility in Fort Bliss, Texas. In June 2016, the Agency selected Complainant to serve as Director of Army Community Service in an Agency facility in Vilseck, Germany.
On February 4, 20182, Complainant initiated EEO contact alleging that the Agency discriminated against and subjected her to hostile work environment harassment on the bases of race (African American), age (52), and reprisal for prior protected EEO activity (prior EEO complaint) between her June 2016 placement and the time of her initial EEO contact. Specifically, Complainant alleged the following incidents occurred:
1. management and subordinate employees conveyed "negative facial expressions and attitudes, snide remarks, second-guessing, micromanagement, disparaging comments, nitpicking and unjustified disparaging comments regarding her work product,"
2. management undermined Complainant's authority as supervisor by encouraging her employees to circumvent the chain of command, question her authority, be insubordinate, and make false reports of bullying and dereliction of duties by Complainant,
3. management allowed her employees to over-rule her decisions rendering it difficult for Complainant to perform her position,
4. management conducted unwarranted interrogations and investigations about Complainant, and prompted her employees to have to choose sides,
5. management invited an open forum of negative statements and attitudes about Complainant,
6. management "falsely portrayed and denigrated Complainant,"
7. management participated in ongoing hostility and negativity toward Complainant, and
8. in June 2016, management forced Complainant into the Vilseck, Germany reassignment.
Complainant alleged that her first line supervisor at the Agency's Fort Bliss, Texas facility (S1) harassed her and contacted her Director at the Vilseck, Germany facility (S2) to do the same. On April 23, 2018, Complainant filed a formal complaint reiterating the above claim.
In its June 20, 2018 final decision, the Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO contact. The Agency stated that the most recent alleged discriminatory event was November 29, 2017, and Complainant did not initiate EEO contact until February 4, 2018.
Complainant stated, in early 2018, while pursuing her previous EEO case, she learned of a "retaliation plot" between S1 and S2. Complainant stated that a deposition by her first line supervisor in Germany (S3) and others prompted her to initiate EEO contact. Also, Complainant stated that the Agency was "resistant" to her claims and she had to provide clarification. In an April 1, 2018 clarification, Complainant added that, on February 2, 2018, a Deputy Commander went to Complainant's former office and spoke with the staff, during which time she referenced her own previous working relationship with S2.
The Agency responded that the deposition to which Complainant cites as disclosing a "retaliation plot" was taken on November 28, 2017. The Agency provided a declaration from S3 stating that she was deposed on November 28, 2017. Also, the record contains a Telephonic Oral Deposition of S3, dated November 28, 2017. In the deposition, S3 stated, in 2016, two employees contacted her under an "open door policy" regarding concerns about Complainant, and she discussed those concerns with Complainant to attempt to resolve. Further, S3 stated that her Deputy Commander shared in a meeting that a significant number of facility employees were expressing "suicidal ideation." S3 stated said information may have been obtained from an email from S1 but she is unsure how S1 would know such information. S3 discussed an "EEO Sensing Session" based on one employee's allegations against Complainant. The Session took place between December 2016 and January 2017.
ANALYSIS AND FINDINGS
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 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. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 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. See McLoughlin v. Dep't of the Treasury, EEOC Request No. 05A01093 (Apr. 24, 2003).
The United States 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 Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (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. at 113. "Each discrete discriminatory act starts a new clock for filing charges alleging that act." Id. The Court defined such "discrete discriminatory acts" to include acts such as termination, failure to promote, denial of transfer, or refusal to hire, acts that constitute separate actionable unlawful employment practices. Morgan at 114. However, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. See Morgan at 117.
Here, Complainant's claim is one of ongoing hostile work environment harassment since June 2016. In her formal complaint of April 23, 2018, Complainant alleged hostile incidents between June 2016 and late 2017. In an April 4, 2018 clarification, Complainant alleged that a Deputy Commander held a meeting at her former office on February 2, 2018. Further, Complainant stated that she became aware of a "retaliation plot" based on S3's deposition, which was taken on November 28, 2017. In that deposition, S3 stated that she discussed communication with subordinates about Complainant as it arose in 2016 and 2017, attempting to resolve it. Further, the record shows that, in December 2016-January 2017, the Agency conducted an "EEO Sensing Session" regarding an employee's allegations against Complainant.
Based on the record, we find that Complainant should have reasonably suspected discrimination more than 45 days prior to her initial EEO Counselor contact on February 4, 2018. As stated above, the time limitation is triggered when a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. We find that the complaint was properly dismissed for untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2).
CONCLUSION
We AFFIRM the final agency decision dismissing Complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (S0610)
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. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
September 25, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 The Agency stated that Complainant contacted an EEO Counselor, on February 4, 2018, via email from her designated representative. The EEO Counselor's Report stated March 1, 2018 was her date of initial contact.
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