0120161258
06-14-2016
Myrtie P.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Myrtie P.,1
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120161258
Agency No. 8L1M16003
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated January 7, 2016, 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 Machinist (WG-3414-11) in the 533 Commodities Maintenance Squadron at the Agency's Ogden Air Logistics Complex in Hill Air Force Base, Utah.
On December 10, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of sex (female) when:
1. On or about August 15, 2015, management threatened to decertify and move her to day shift for retraining if she made any mistakes.
Complainant's formal complaint further alleged that the Agency discriminated against her on the basis of sexual harassment when:
2. On or about August 21, 2015, a co-worker (unidentified) wrote "Fuck you bitch" on a heavy lifter sticker that was located by a female co-worker's ("C1") toter.
3. On or about October 1, 2014, a co-worker (unidentified) changed the wording on a magnet from PME (for "Precision Measuring Equipment") to PMS and placed it on her computer desk.
4. On or about September 15, 2012, a male coworker ("C2") physically restrained her by her shoulder in the hallway upon him exiting the men's restroom.
5. On or about September 15, 2012, C2 made comments to the effect of "I would like to go out with you because older women are more sexually experienced."
When she filed the instant complaint, Complainant had been working for the Agency for nine (9) years as one of about of 450 (majority male) personnel tasked with refurbishing aircraft wings and flight controls. As background information, Complainant alleges that throughout the past nine years, her male coworkers subjected her to critiques on her hair and makeup, repeated questions about her sexual orientation, rumors about her relationships with coworkers, telling her she had to sweep because it is "woman's work," leaving trash in her and C1's work areas, and stealing personal items off of her desk. The harassment allegedly continued even though Complainant moved work areas several times and reported incidents to management. The record indicates management completed annual Sexual Harassment Training between July and August 2015.
The Agency dismissed Claims 1 and 2 pursuant to � 29 C.F.R. 1614.107(a)(1) for failure to state a claim; and Claims 3, 4 and 5 pursuant to � 29 CFR 1614.107(a)(2) for untimely contact with an EEO Counselor. The instant appeal followed.
ANALYSIS AND FINDINGS
Claim 1 - Management Threat
With regard to Claim 1, EEOC Regulation 29 C.F.R. � 1614.107(a)(5) provides, in part, that the agency shall dismiss a complaint that alleges that a proposal to take a personnel action, or other preliminary step to taking a personnel action, is discriminatory. There is no indication in the record that the Agency has taken any action (including issuing a written notice of proposed action) in furtherance of Management's alleged threat to decertify Complainant in Claim 1. We further find that claim 1 is insufficiently connected thematically to Complainant's other claim alleging a pattern of ongoing sexual harassment by coworkers and management's lack of effective action when the harassment was reported. As a result, we find that Claim 1 is at most a proposed agency action which is insufficient to state a claim of sex discrimination.
"Claims" 2-5 - Ongoing Sexual Harassment
As a preliminary matter, we find that the Agency improperly fragmented complainant's complaint of harassment/hostile work environment by treating individual incidents as separate claims. The Commission has discouraged this practice because it prevents the statement of a coherent and integrated claim. See EEO MD-110, 5-5 (Aug. 15, 2015) Moreover, by identifying Complainant's allegations as separate and distinct legal claims, despite the nature of Complainant's allegations and the background information Complainant provided, the Agency ignored the real underlying issue of a pattern of ongoing discrimination, alleged in the record. See Reid v. Dep't. of Commerce, EEOC Request No. 05970705 (Apr. 22, 1999); Ferguson v. Dep't. of Justice, EEOC Request No. 05970792 (Mar. 30, 1999) see also Meaney v. Dep't of the Treasury, EEOC Request No. 05940169 (Nov. 3, 1994). Agencies should not ignore the "pattern aspect" of a complainant's claims and define the issues in a piecemeal manner where an analogous theme unites the matter complained of.
As for allegation 2, EEOC Regulation 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). The Agency argues that allegation 2 fails to state a claim because Complainant fails to establish that she is an "aggrieved employee." See Diaz, supra; Henderson v. Dep't of the Army, EEOC Appeal No. 0120132221 (Feb. 11, 2014). When properly viewed in the context of Complainant's overall complaint of harassment, we find allegation 2 fits within the pattern of Complainant's harassment claim.
Likewise, the Agency erred when it dismissed allegations 3, 4, and 5 as untimely. Under EEOC Regulation 29 C.F.R. �1614.107(a)(2) an agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105. 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. However, where "incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filing period." See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (Jun. 10, 2002). Here, we find all five of Complainant's allegations comprise a single claim of harassment and the most recent event occurred on August 21, 2015. Complainant contacted the EEO Counselor on September 1, 2015, which is well within the 45 day limitation period.
Further, we find that when considered together, the claims are sufficient to state a claim of harassment.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED.
The claim of ongoing sexual harassment is hereby REMANDED to the Agency for further processing in accordance with this decision and the Order below. Allegations 2-5 shall be considered as evidence in support of this claim, although may not be the only evidence proffered by Complainant.
ORDER (E0610)
The Agency is ordered to process the remanded claim 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 (M0416)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
June 14, 2016
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below:
Susan K. Washington
2591 North 325 West
Sunset, UT 84015
Christian A. Kesselring
Wasatch Law Group
P.O. Box 866
Herber City, Utah 84032
Rita Looney, Director
SAF/MRBA (AFCARO)
Department of the Air Force
1500 West Perimeter Road, Suite 3320
Joint Base Andrews, MD 20762-7002
__________________
Date
______________________________
Compliance and Control Division
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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