Kendra W.,1 Complainant,v.Eric Fanning, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Apr 14, 2016

0520160113 (E.E.O.C. Apr. 14, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Kendra W.,1
Complainant,

v.

Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.

Request No. 0520160113

Appeal No. 0120152150

Agency No. ARCENORL15MAR01167

DECISION ON REQUEST FOR RECONSIDERATION

The Agency requested reconsideration of the decision in EEOC Appeal No. 0120152150
(October 29, 2015). EEOC Regulations provide that the Commission may, in its discretion,
grant a request to reconsider any previous Commission decision where the requesting party
demonstrates 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. See 29 C.F.R. § 1614.405(c).

In the underlying complaint, Complainant alleged she was sexually and non-sexually harassed
and physically assaulted, between December 1 and 22, 2014, while working aboard the U.S.
Dredge "Wheeler.” Additionally, Complainant claimed that after reporting the harassment she
was subjected to retaliation.

The Agency defined the events of harassment as follows:2
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 presented the claims in reverse chronological order, labeling them (a) through
(h). For the purposes of clarity, this decision shall describe the events in chronological order
and to correspondingly depart from the letters assigned to each incident in the Agency
decision.

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1. Shortly after boarding the Wheeler, Complainant became concerned that certain
men were entering her private room and rifling through her belongings. On
December 1, 2014, she observed that zip ties she used to secure her personal
belongings in her room had been cut and that a Common Access Card she borrowed
from Crew Member [G] was missing. Based on [Crew Member G's] behavior, the
state of her belongings, and the missing card, [Complainant] believes that [Crew
Member G] had gone through her personal belongs. [Complainant] sent a text
message to [employee B] in the New Orleans office of the Army Corps of Engineers
regarding the harassment, specifically asking “Who should I talk to first?”
[Employee B] said that she would contact [the Captain] of the Wheeler.

2. On December 3, [Complainant] caught Crew Member [M] in her room going
through her trash and she grabbed the trash from him. She did not know why he
was going through her trash. She reported the harassment to the Captain and he
dismissed her concerns by telling her that the crew members were “playing a joke
on her.”

3. On December 9, 2014, [Crew Member G] sexually and physically assaulted
[Complainant]. He cornered and groped her by grabbing her breasts and putting his
hands into her pants. Fearing for her safety, [Complainant] attempted to avoid
further contact with him.

4. On December 16, 2014, [Crew Member G] again cornered [Complainant] and
groped her and attempted to put his hands into her pants. Immediately after this
assault, [Complainant] went to [Crew Member D] in tears and reported what
happened. The following day, [Complainant] reported the assault to Assistant
Captain who told her that he would “take care of it,” but nothing was done.

5. On December 21, 2014, [Crew Member D] physically assaulted [Complainant] in
his room. [Crew Member D] threw [Complainant] against the wall because he
suspected [her] of “talking to his girlfriend.” [Complainant] sent a text message to
the Captain immediately after the assault informing him that [Crew Member D] had
hurt her arms and ribs and was in a great deal of pain. The Captain instructed
[Complainant] not to come to his office and insisted that she answer several
questions via text message instead. [Complainant] complied with his request.

6. On December 22, 2014, the Captain brought [Complainant] to his office for a
lengthy interview that he referred to as part of his “investigation” of what had
happened. At the conclusion of the interview, the Captain told [Complainant] that
she would have to leave the vessel. He told her that she would have to remain in
her room until she could leave the vessel and she would be arrested if she did not
comply.

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7. On December 22, 2014, [Complainant] left the Wheeler. She was met on shore by
two members of the Freeport Police Department, who interviewed her regarding the
harassment to which she had been subjected on the vessel. The police officers
escorted [Complainant] to the Coast Guard Office, where she described the
harassment she experienced to a Coast Guard Officer, but was told that the Coast
Guard Officer did not want to hear it. Sometime later, the Freeport police officers
attempted to board the Wheeler to investigate, but they were told that they would
need a warrant in order to board the vessel.

8. [Complainant] was sexually and physically assaulted by her crew members while
working aboard the Dredge Wheeler and that multiple attempts to report her assault
to fellow crew members, the Captain, Assistant Captain, the New Orleans office of
the Army Corps of Engineers, the Police, and the Coast Guard were ignored until
she was removed from the Wheeler on the threat of arrest.

In the previous decision, the Commission reversed the Agency’s dismissal of Complainant’s
complaint. The Commission found the Agency exerted sufficient control to be considered a
joint-employer for the purposes of Title VII. The Commission also found the Agency
improperly dismissed Complainant’s complaint for untimely EEO Counselor contact. The
Commission recognized that the Agency submitted an affidavit from the Captain of the
Wheeler stating that EEO posters are on display on the bulletin board across from the crew’s
recreation lounge. However, the Commission found the Captain’s statement lacked specificity
regarding the dates the posters were on display. Also, the Commission questioned the
adequacy of evidence, regarding EEO posters, provided by one of the individuals accused of
discriminatory reprisal. Thus, the Commission found the Agency failed to show that
Complainant had actual or constructive knowledge of the time limits for contacting an EEO
Counselor.

In its request for reconsideration, the Agency states that while some of the factors point to a
joint employer relationship, the majority of the factors do not. The Agency also argues that
Complainant’s complaint should be dismissed for untimely EEO Counselor contact. The
Agency states that contrary to Complainant’s contentions, an Agency can rebut a
Complainant’s assertion that she was unaware of the applicable time limits by providing
evidence that she had actual or constructive notice of the limitations period. The Agency notes
that it posted Sexual Harassment/Assault Response and Prevention (SHARP) and EEO posters
and policy letters in Complainant’s work facility, which contained information regarding EEO
rights as well as the applicable time limits for initiating an EEO counseling process. The
Agency notes that the Captain’s Affidavit stated that the posters were displayed in a prominent
area accessible by employees, on a bulletin board across from the crew’s recreation lounge,
and were displayed during Complainant’s stay on the Dredge Wheeler. While the Agency
acknowledges that the Captain is alleged to have retaliated against Complainant, it states as the
Captain of the Dredge Wheeler, he is the individual most knowledgeable regarding the posting
of EEO posters on the vessel. Thus, the Agency argues it has shown Complainant had
constructive knowledge of the time limits for EEO Counselor contact.

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Upon review, we find the Agency failed to show the Commission’s prior decision in weighing
the factors and finding that the Agency was a joint employer was clearly erroneous.
Moreover, we find the Commission properly reversed the Agency’s dismissal of Complainant’s
complaint for untimely EEO Counselor contact. Specifically, we note that the Agency did not
provide evidence from someone other than the alleged discriminating official showing that an
EEO poster containing the applicable time limits was displayed during the time Complainant
was working on the Wheeler.

After reviewing the previous decision and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the
Commission to deny the request. The decision in EEOC Appeal No. 0120152150 remains the
Commission's decision. There is no further right of administrative appeal on the decision of
the Commission on this request. The Agency shall comply with the Order as set forth herein.

ORDER (E0610)
The Agency is ordered to process the remanded claims 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

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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.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)

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 (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

April 14, 2016
Date