0120083138
11-13-2008
Mary E. Demmitt, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Mary E. Demmitt,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120083138
Agency No. ARAPG08MAR00825
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 9, 2008, 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 her
complaint, complainant alleged that she was subjected to discrimination
on the bases of sex (female) and reprisal for prior protected EEO activity
when:
1. between April 2006 and December 26, 2007, complainant's supervisor and
her co-workers created a hostile work environment by making derogatory
comments and inappropriate faces; by questioning complainant's
performance, and her character;
2. between April 2006 and October 17, 2007, complainant's supervisor
and co-worker harassed her by insinuating that complainant was a lesbian
and that she was having an affair with a co-worker;
3. on October 31, 2007, complainant was removed from her position; and
4. between April 2006 and July 2007, her supervisor denied training to
advance her career
The agency dismissed claims 1, and 2 as untimely in accordance with EEOC
Regulation 29 C.F.R. � 1614.107(a)(2). 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. Department of the Navy, EEOC Request
No. 05970852 (February 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
In claims 1 and 2 the record indicates that the alleged discriminatory
events occurred between April 2006 and December 26, 2007, but complainant
did not initiate contact with an EEO Counselor until December 13, 2007.
The agency found that complainant failed to timely initiate contact
with an EEO Counselor and dismissed claims 1 and 2 as untimely.
On appeal, complainant indicates that in October 2006, she spoke with
her supervisor's supervisor regarding her EEO concerns and in November
2006, contacted the agency's EEO office regarding her workplace issues.
Complainant further indicates that she was told that she had contacted
the wrong EEO office and that she needed to contact the EEO office at
the agency's Aberdeen Proving Ground facility. In its opposition to
complainant's appeal, the agency acknowledges that complainant contacted
the agency's EEO office "a year prior to filing her informal complaint."
The agency also indicates that when complainant contacted the EEO office
in November 2006, she was directed to the Aberdeen Proving Ground EEO
office. In the meantime, according to the agency, complainant spoke
with an attorney in the agency's Office of Chief Counsel regarding her
work related issues and EEO concerns, but did not demonstrate her intent
to file an EEO complaint. After review of the record in this matter,
however, the Commission finds that complainant met her obligation to
exhibit her intent to begin the EEO process when she spoke with an
agency official; her second line supervisor regarding her EEO concerns,
when she contacted the EEO office in November 2006 (although it was the
incorrect office), and when she spoke with the agency's attorney regarding
her workplace issues. Where as here there is an issue of timeliness,
"[a]n agency always bears the burden of obtaining sufficient information
to support a reasoned determination as to timeliness." See Guy
v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994)
(quoting Williams v. Department of Defense, EEOC Request No. 05920506
(August 25, 2992)). In addition, in Ericson v. Department of the Army,
EEOC Request No. 05920623 (January 14, 1993), the Commission stated that
"the agency has the burden of providing evidence and/or proof to support
its final decisions." We find that the agency has failed to establish
that complainant failed to timely contact an EEO Counselor with the
intent to begin the EEO process. Although complainant contacted the
wrong EEO office regarding her concerns, there is no question that she
intended to initiate the EEO complaint process.
Accordingly, the Commission finds the agency's dismissal of claims 1
and 2 was improper. Claims 1 and 2 are remanded to the agency.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails 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 or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
In its final decision, the agency dismissed claims 3 and 4 for failure
to state a claim pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(1).
In reaching this decision, the agency indicated that complainant failed
to state a claim of reprisal because she had not engaged in protected
EEO activity. Specifically, the agency indicated that her prior complaint
to an agency official which resulted in an agency investigation did not
amount to protected EEO activity subject to the protection of EEO laws
and regulations. Upon review, the Commission finds that in its dismissal
of claims 2 and 3, the agency has addressed the merits of complainant's
allegations without a proper investigation as required by the regulations.
We find that the agency's conclusion that complainant could not prove
unlawful retaliation because she had no prior protected activity goes
to the merits of claims 2 and 3, and is irrelevant to the procedural
issue of whether she has stated a justicible claim under Title VII.
See Osborne v. Department of the Treasury, EEOC Request No. 05960111 (July
19,1996); Lee v. United States Postal Service, EEOC Request No. 05930220
(August 12, 1993); Ferrazzoli v. United States Postal Service, EEOC
Request No. 05910642 (August 15, 1991). In that regard, we find that the
agency's decision dismissing claims 3 and 4 for failure to state a claim
was improper. That portion of the agency's decision dismissing claims
3 and 4 is reversed and claims 3 and 4 are remanded to the agency.
Accordingly, for the reasons set forth herein, the agency's decision
dismissing complainant's complaint is hereby reversed. The compliant
is remanded to the agency for further processing in accordance with this
decision and the Order below.
ORDER (E0408)
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 (K0408)
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 (M0408)
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 (R0408)
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 (Z0408)
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
November 13, 2008
__________________
Date
2
0120083138
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120083138