0120130908
06-05-2013
Margarette E. Nelson, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Margarette E. Nelson,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120130908
Agency No. RMA-2012-00914
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated November 14, 2012, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Senior Investigator, GS-1801-13, at the Agency's Risk Management Agency facility in Raleigh, North Carolina.
On June 15, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination and a hostile environment on the bases of race (African-American), sex (female), and color when:
1. on unspecified dates, Complainant did not receive annual performance appraisals;
2. on unspecified dates, her supervisor assigned Complainant secretarial tasks to perform;
3. on August 8, 2012, her supervisor failed to support Complainant's corrections to an employee's work and accused her of having a "personality clash" with the employee;
4. on May 11, 2012, during her mid-year performance evaluation, her supervisor told Complainant that she was unyielding, intimidating, and that she needed to provide greater assistance and guidance to junior employees with their assignments;
5. on an ongoing basis, her supervisor told Complainant and other employees that Complainant "crack[ed] the whip" and work must be performed "her way" -[referring to Complainant];
6. on an unspecified date, upon the disappearance of her submitted work, Complainant's co-workers joked about whether she would "explode" or create a "hostile work environment";
7. on two unspecified dates, Complainant found a tire flattened, by a nail, on her personal automobile which was parked in the workplace parking lot;
8. on unspecified dates, Complainant was subject to offensive electronic mail, rude and mean-spirited jokes, and profanity in the workplace;
9. on unspecified dates, Complainant heard a Rush Limbaugh commentary playing in the office; and
10. on unspecified dates, photographs of the President Obama were stolen and the tires of a former co-worker (African American female) were flattened.
The record shows that Complainant was the only remaining African-American female employee employed at the facility when the alleged incidents occurred.
The Agency issued a final decision dismissing the complaint for untimely EEO contact and for failure to state a claim. The Agency concluded that there was no basis for extending the statutory time period. The Agency reasoned that there was sufficient evidence that Complainant knew, or reasonably should have known of the 45-day time limit concerning EEO counseling because she completed a number of USDA civil rights courses.
Next, the Agency found that Complainant was not aggrieved because the alleged incidents, when viewed together, were not severe or pervasive enough to constitute a hostile or abusive work environment on the basis of race, color, or sex.
This appeal followed.
ANALYSIS AND FINDINGS
Failure to State a Claim
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, genetic history, or disabling condition. 29 C.F.R. �� 1614.103 and 1614.106(a).
We construe Complainant's complaint to allege that, because of her race, color, and sex, she was harassed and subjected to a hostile work environment which the Agency condoned. The Commission has held that where, as here, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, a claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). In this case, the complaint alleges that Complainant is being subjected to an ongoing pattern of harassment and unfair treatment that includes ridicule, mean-spirited jokes, working in an intimidating environment where her tires, and those of the former African-American employee, were slashed, and her work was undermined. We find that Complainant's allegations are sufficient to state a claim of a hostile work environment.
Upon review, therefore, we find that Complainant's complaint was improperly dismissed, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
Untimely EEO Contact
EEOC Regulation 29 C.F.R �1614.105(a)(1) requires that complaints of discrimination 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 Agency has improperly fragmented Complainant's claim of ongoing discriminatory harassment and dismissed many of the incidents offered in support of that claim on timeliness grounds. The 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 National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). In this case, it is undisputed that Complainant made timely EEO contact on August 22, 2012, for the incidents that occurred on August 8, 2012 when her supervisor allegedly failed to support her corrections and accused Complainant of having a "personality clash" with the employee. The record is unclear with regard to the dates of the puncturing of the tires of African-American employees, the playing of the Rush Limbaugh commentary, the offensive electronic mail and verbal abuse by her supervisor. We find, however, that these allegations and the August 8, 2012 allegation are part of a single hostile work environment claim. Accordingly, we find the Agency erred in dismissing some allegations on timeliness grounds.
CONCLUSION
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint. We REMAND the complaint to the Agency for further processing in accordance with the Order below.
ORDER
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 (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 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 (M0610)
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 tends 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), at 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 (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 (Z0610)
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
June 5, 2013
__________________
Date
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0120130908
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120130908