01991944
11-08-1999
Lisa S. Merritt, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Lisa S. Merritt v. Department of Defense
01991944
November 8, 1999
Lisa S. Merritt, )
Appellant, )
)
v. ) Appeal No. 01991944
) Agency No. 98-DCWHX-038
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Commissary Agency), )
Agency. )
______________________________)
DECISION
On December 12, 1998, appellant filed a timely appeal from the agency's
November 20, 1998 final decision (FAD), which partially dismissed
appellant's October 21, 1998 formal EEO complaint. For the reasons set
forth below, the Commission sets aside the FAD.
The FAD defined the issues in appellant's complaint, which definitions
appellant has not challenged on appeal, as follows:
(a) Appellant was coerced into a sexual affair with (the Commissary
Officer, hereinafter "CO," at the Fort Wainwright (Alaska) Commissary);
she suffered severe emotional trauma and humiliation; was subjected to
a hostile and intimidating workplace; and the agency failed to enforce
policies on sexual harassment.
(b) The Western Pacific/Director (DIR) interfered with appellant's
rights to present an EEO complaint.
(c) Appellant was discriminated against based on sex (female), sexual
harassment (hostile environment), and reprisal for EEO activity when
her Supervisor gave her a Letter of Concern for causing a disturbance at
Eielson Commissary where she went to confront the Store Manager about
rumors regarding appellant.
The FAD accepted allegation (c) for investigation.<1> The FAD dismissed
allegation (a), finding that appellant initially contacted an EEO
Counselor on August 4, 1998, and found that this contact was beyond
the applicable time limitations for initiating EEO counseling under
the Commission's regulations.<2> Specifically, the agency determined
that appellant's alleged affair occurred between November 1997 through
mid-March 1998, and that her initial EEO Counselor contact was untimely
with respect to this incident.
The FAD also dismissed allegation (b) for the following reasons: "The
agency shall dismiss a complaint that states the same claim that is
pending, which is this very same issue being accepted. There was no
interference."
The gravamen of appellant's appeal<3> is that the time limits in her
case "are irrelevant." She contends she had been subjected to a hostile
work environment and that agency officials had failed "to take corrective
action." She appears to argue that alleged "incidents of discrimination"
were "directly related to the sexual harassment I reported in May 1998."
There was no response by the agency to appellant's appeal.
The Commission finds the agency erred in dismissing allegation (a). We
find the agency has improperly treated appellant's allegations in
piecemeal fashion where, as here, she has alleged a hostile work
environment and pattern and practice of discrimination. See Meaney
v. Department of the Treasury, EEOC Request No. 05940169 (November 3,
1994). We also find appellant's allegations constitute a continuing
violation. See Moryl v. U.S. Postal Service, EEOC Appeal No. 01942043.
We find, moreover, that the agency's reliance on August 4, 1998 as the
date of appellant's initial EEO contact is misplaced. We find that
appellant contacted the Zone Manager for Alaska Commissaries (AZM) by
letter dated May 1, 1998, advising him of her alleged sexual relationship
with CO, allegedly initiated by CO, between mid-November 1997, and
mid-March 1998. Appellant also indicated in this correspondence her
interest in pursuing the EEO complaint process as well as pursuing "any
other avenues of relief" available to her. We find that appellant's
contact with the AZM in May 1998 can be construed as a contact with
an official logically connected to the EEO Complaint process, with
the intent of pursuing an EEO complaint. See Floyd v. National Guard
Bureau, EEOC Request No. 05890086 (June 22, 1989). We find, moreover,
that appellant's EEO contact occurred withing forty-five days of the
date that the alleged incident of discrimination occurred.
Moreover, we also find that AZM had issued a Letter of Reprimand, dated
February 3, 1998, to CO regarding the propriety of CO's relationship with
appellant and other female employees. We further find that the agency
conducted an investigation, in April 1998, by a Personnel Management
Specialist, which "substantiated that there was an unprofessional
relationship between [appellant] and [CO]." Therefore, we conclude that
the agency had been on notice long before appellant's EEO contact, as to
CO's purportedly questionable conduct with female employees in general,
and appellant in particular.
The Commission also finds the agency erred in dismissing allegation
(b). We find no evidence that allegation (b) states the same claim
pending before the agency.<4> We find without basis in fact the
agency's assertion that allegation (b) "is the very same issue being
accepted," i.e., allegation (c). We also find the agency's assertion
that "[t]here was no interference" improperly goes to the merits of
appellant's allegation (b). We find, instead, appellant's allegation
(b) to be part of her complaint of a hostile work environment.
The FAD's partial dismissal of appellant's complaint is hereby REVERSED
and appellant's complaint is hereby REMANDED to the agency for further
processing consistent with the Commission's decision and applicable
regulations. The parties are advised that this decision is not a decision
on the merits of appellant's complaint. The agency shall comply with
the Commission's ORDER set forth below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgement to appellant 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 (K0595)
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 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
11/08/1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1Appellant acknowledged receipt of the Letter of Concern on July 24,
1998.
2See 29 C.F.R. �1614.105(a)(1) (45 days); and 29 C.F.R. �1614.107(b)
(dismissal based on untimeliness).
3Appellant submitted correspondence to the Commission with regard to this
matter well beyond the applicable time limit of 30 days subsequent to
the filing of her appeal. Accordingly, the Commission has not considered
those submissions. See 29 C.F.R. �1614.403(d).
4See 29 C.F.R. �1614.107(a), in pertinent part.