01A14348_r
05-10-2002
Precilla Tolbert, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Precilla Tolbert v. Department of the Army
01A14348
May 10, 2002
.
Precilla Tolbert,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A14348
Agency No. BXJDFO0010A0180
DECISION
Upon review, the Commission finds that the complaint was improperly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) and (2) for failure to
state a claim and untimely EEO Counselor contact.
The record contains a document titled �Informational Inquiry Summary.
This document, signed by an agency EEO official, designates complainant's
�Date of Initial Contact� as �13 Sep 00.� The EEO official also made
the following handwritten entry in a section he identified as �Note�:
Aggrieved mailed letter to USAREUR EEO on 13 Sep 00. Received at 104th
Ash Office 10 Oct 00.
On March 13, 2001, complainant filed a formal complaint claiming that
she had been discriminated against on the bases of race, sex, age, and
disability when from December 1999 to August 2, 2000, agency officials
engaged in the following conduct: (1) failed to give her support and
guidance; (2) allowed members of the community to personally attack her in
an agency town hall meeting; (3) failed to communicate issues to her; (4)
questioned her authority; (5) discussed complainant's doctor's appointment
with her staff; (6) failed to detail her to another position as proposed;
(7) sent a message stating that management �may need to find another
CDC director; (8) stated complainant was showing favoritism; and (9)
held a meeting that constituted a �witch hunt� against complainant.
The record reflects that the matter addressed in claim 9 purportedly
occurred on August 2, 2000.
The agency dismissed the complaint for failure to state a claim and
untimely EEO Counselor contact. The agency found that the complainant
had not been aggrieved by the alleged incidents. The agency also found
that complainant's initial EEO Counselor contact occurred on September
21, 2000, which is beyond the 45-day time limit for timely contacting
a Counselor.
On appeal, complainant acknowledges that the agency determined that
her initial EEO Counselor contact occurred on September 21, 2000.
Complainant, however, asserts that she contacted the EEO office �prior
to the deadline.� Complainant also asserts that the matters raised in
her complaint rendered her aggrieved.
Failure to state a claim dismissal
We disagree with the dismissal of the complaint for failure to state a
claim. A review of the dismissed claims persuades the Commission that,
when considered together and treated as true, they could be sufficient
to state a claim of harassment. The Commission has previously held
that an agency 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 matters complained of. Meaney v. Department of the
Treasury, EEOC Request No. 05940169 (November 3, 1994). By alleging
a pattern of harassment, complainant stated a cognizable claim under
the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303
(November 12, 1993). Accordingly, the agency's decision to dismiss the
complaint for failure to state a claim was improper and is REVERSED.
Untimely EEO Counselor contact dismissal
We also find that the complaint was improperly dismissed on the basis of
untimely EEO counselor contact. The agency determined that complainant's
initial EEO Counselor contact occurred on September 21, 2000, which is
50 days after the last incident of alleged discriminatory conduct, the
�witch hunt� meeting identified in claim 9, which purportedly occurred
on August 2, 2000. However, the Informational Inquiry Summary signed
by the EEO official referenced above shows that complainant initially
contacted the EEO office on an earlier date: September 13, 2000.
That date is within 45 days of the matter raised in claim 9. Moreover,
as complainant is alleging that she is a victim of harassment, and because
some of the incidents raised in the complaint were timely raised with
an EEO Counselor, the Commission determines that all claims contained
in the complaint were timely raised. The agency's decision to dismiss
the complaint for untimely EEO contact is REVERSED.
In conclusion, the agency's final decision dismissing the complaint on the
grounds of untimely EEO contact and failure to state a claim is REVERSED.
The complaint is REMANDED for further processing in accordance with 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
May 10, 2002
Date