01A61380
07-06-2006
Lorraina N. Kokangul, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Lorraina N. Kokangul,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A61380
Agency No. AEUDAR05SEPT108
DECISION
INTRODUCTION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 1, 2005, 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.
In the instant complaint, dated October 21, 2005, complainant claimed that
she was subjected to discrimination on the basis of sex (female) when:
on August 27, 2007, a male fellow employee intentionally poked her in
the crotch with a fork and remarked, "Oh, it's fat, too," while
complainant was bringing him a meal in his room.
BACKGROUND
According to the record, at the time of the incident complained of,
complainant was employed by the agency as a Social Worker-Substance Abuse
Counselor, and was assigned to the Darmstadt Army Base in Germany. The
incident occurred at the Patriot Inn Guest House in Darmstadt, a temporary
lodging facility for agency employees, where both the complainant and
alleged perpetrator were housed.
Immediately following the incident, which complainant claimed left her
"distraught," complainant left Germany for the United States for ten days
of previously planned leave. The record indicates that, on August 29,
2005, while in New Mexico, complainant visited the Emergency Room of a VA
hospital for dizziness, and when the examining physician noted that she
appeared anxious, complainant disclosed the alleged assault.
Upon returning to Germany on September 7, 2005, complainant notified
authorities at the Army base of the alleged assault and an investigation
was initiated by the Criminal Investigation Command. The investigation,
which was concluded on September 16, 2005, resulted in a finding of
insufficient evidence to believe that the alleged perpetrator committed the
assault.
The complainant, who had initiated contact with an EEO counselor on
September 8, 2005, opted to file a formal complaint with the agency on
October 21, 2005. In her complaint, and on appeal, the complainant claimed
the incident resulted in an exacerbation of her pre-existing Post-Traumatic
Stress Disorder. Complainant claimed that "the proximity of both the
perpetrator and items associated with him" led to "monumental disruptions
in both [her] personal and professional life." Complainant states that
due to her employment in Germany, she cannot avoid seeing the alleged
perpetrator on a regular basis because they continue to live on the same
hall at the Patriot Inn, eat in the same dining hall, and use the same base
facilities. Complainant asserts her belief that, because of the continuing
physical presence of the alleged perpetrator and the lack of "structured
interventions in place to address" the issue, the alleged perpetrator will
attempt to "re-offend" her.
In its December 1, 2005 final decision, the agency dismissed the complaint
pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
Specifically, the agency first determined that the matter was not
sufficiently tied to her employment status to render her aggrieved in a
term or condition of employment because the alleged incident occurred
during off duty hours and in the alleged perpetrator's private quarters.
In addition, the agency found that even if the incident occurred as
described by complainant, it was not sufficiently severe or pervasive to
state a viable hostile work environment claim.
ANALYSIS AND FINDINGS
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to
state a claim. Unwelcome sexual advances or verbal or physical conduct of
a sexual nature constitute sexual harassment when such conduct has the
purpose or effect of substantially interfering with an individual's work
performance or creating an intimidating, hostile, or offensive working
environment. See 29 C.F.R. � 1604.11(a)(3). Sexual harassment which occurs
off the work premises and after duty hours does not deprive the agency of
the jurisdiction to investigate those allegations when the effect of the
off-duty contact is to create an "intolerable influence in the employee's
working conditions." See Palacios v. Department of the Air Force, EEOC
Request No. 01830134 (June 6, 1983).
In order to establish a case of hostile environment sexual harassment, the
complainant must show that: (1) she is a member of a protected group, (2)
she was subject to unwelcome sexual advances or other verbal or physical
conduct of a sexual nature, (3) the harassment complained of was based on
sex, and (4) the harassment is sufficiently severe or pervasive so as to
alter the conditions of employment and create an abusive working
environment. See Henry v. Department of the Army, EEOC Request No.
01943193 (January 26, 1996) (quoting Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982)). Using this test, complainant's allegations are
sufficient to state a justiciable claim of unlawful harassment. Therefore,
we find that complainant has alleged an injury or harm to a term,
condition, or privilege of employment for which there is a remedy. See
Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21,
1994), and that the agency's dismissal of her complaint was improper.
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 (E0900)
The agency is ordered to process the remanded claims 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 (K0501)
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 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 (M0701)
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 19848, Washington, D.C.
20036. 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 (R0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 6, 2006
__________________
Date