01A41541_r
08-10-2004
Meike Bhariana, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Meike Bhariana v. Department of the Army
01A41541
August 10, 2004
.
Meike Bhariana,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A41541
Agency No. ARDLI03AUG0012
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 21, 2003, 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 EEO activity when she
was terminated in July of 2003, after notifying management in February
2003, that she was subjected to a hostile work environment.
The agency dismissed the complaint for failure to state a claim.
The agency determined that, based on a review of the record, complainant
had no prior EEO activity and therefore did not allege a protected basis.
Additionally, the agency found that if complainant was claiming unresolved
sexual harassment on the basis of sex, her claim was untimely raised.
We find, first, that the agency misdefined complainant's complaint
regarding unresolved sexual harassment on the basis of sex. Complainant
was not claiming unresolved sexual harassment; rather, complainant was
alleging termination on the bases of reprisal and sex.
EEOC Regulations require the dismissal of complaints that fail to
state a claim. To state a claim, complainant must allege present harm
inflicted on the bases of race, color, sex, religion, national origin,
age, disability, or prior protected activity. See Diaz v. Department of
the Air Force, EEOC Request No. 05931049 (April 21, 1994). Concerning
claims of reprisal, EEOC Regulations prohibit reprisal against an
individual for opposing any practice made unlawful by Title VII of the
Civil Rights Act (Title VII) (42 U.S.C. 2000e et 29 U.S.C. 206(d)), the
Age Discrimination in Employment Act (ADEA) (29 U.S.C. 621 et seq.),
the Rehabilitation Act (29 U.S.C. 791 et seq.), or for participating
in any stage of administrative or judicial proceedings under these
statutes. 29 C.F.R. � 1614.101(b).
We find that the agency incorrectly dismissed complainant's complaint
for failure to state a claim. The agency's determination of no prior
EEO activity is contrary to the evidence in the record. A review of the
record shows that in February 2003, management investigated a claim of
sexual harassment involving complainant. Complainant was the primary
witness in the investigation and, per management's request, complainant
provided a written statement complaining of a hostile work environment.
The agency states that complainant was terminated effective September
29, 2003. In alleging that she was terminated, complainant has shown
an injury or harm to a term, condition, or privilege of employment for
which there is a remedy.
The agency also appears to dismiss a claim of sexual harassment for
untimely EEO Counselor contact. The Commission finds that the complaint
only concerns one claim - harassment leading to termination. The matter
of harassment is intertwined with the harassment, because complainant is
arguing that the harassment culminated in the termination. Therefore,
such a claim was timely raised with an EEO Counselor on August 26, 2003.
Accordingly, the agency's final decision dismissing complainant's
complaint is REVERSED and we REMAND the complaint 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. 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
August 10, 2004
__________________
Date