Sherril W.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionDec 7, 20182019000481 (E.E.O.C. Dec. 7, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sherril W.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency. Appeal No. 2019000481 Agency No. ARUSAR18MAY01632 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated August 2, 2018, 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.. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as the Chief of Records Management and Publishing Branch the Agency’s Headquarters Reserve Command at Fort Bragg, North Carolina. On May 10, 2018, Complainant initiated EEO counselor contact. Informal efforts to resolve her concerns were unsuccessful. On July 20, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the based on sex and age when: 1. in 2011, her supervisor at the time tried to downgrade her position and remove her supervisory status; 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. 2019000481 2 2. the Supervisor would not speak directly to her or say good morning to her and relayed directions to her through a colleague; 3. in August 2011, she was asked to give up her office; 4. on or around July 2012, while taking six weeks of leave, she was called back to work to perform various duties including payroll, Requests for Personnel Actions, and attend a meeting; 5. from August 2011 to July 2013, she witnessed and/or heard from multiple colleagues that the Supervisor made rank, race, and sex based comments or actions; 6. from 2012 to July 2013, she had to work at least two hours of compensatory time daily, and was directed to come in on Saturdays because of her excessive workload; and, 7. due to her branch being realigned she was informed she would report to the Supervisor effective June 1, 2018. On August 2, 2018, the Agency issued its final decision. Regarding claims 1 to 6, the Agency determined that Complainant had failed to comply with the applicable time limits by not contacting an EEO counselor within 45 days of the allegedly discriminatory incidents. Moreover, the Agency determined that Complainant failed to provide a sufficient reason for tolling the time period. Therein, the Agency dismissed claims 1 to 6 for untimely EEO counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). Regarding claim 7, the Agency determined that Complainant was not aggrieved as she had failed to demonstrate any harm or loss with respect to a term, condition, or privilege of employment. Therein, the Agency dismissed claim 7 pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Additionally, the Agency determined that claim 7 had too significant of a gap in time with claims 1 to 6 to constitute an overall viable claim of ongoing harassment. The instant appeal followed. On appeal, Complainant asserts that she is the victim of a continuously hostile workplace environment that started in 2011. Complainant asserts that the harassment has resulted in the most recent discriminatory action. Specifically, that her branch was being realigned. ANALYSIS AND FINDINGS Untimely EEO Counselor Contact: Claims 1-6 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 2019000481 3 (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 he 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. Ellis v. United States Postal Service, EEOC Request No. 01992093 (Nov. 29, 2000). Here, Complainant contacted the EEO Counselor on May 10, 2018, regarding allegations of continuous hostile work environment stemming from 2011. The dates listed in claims 1 to 6 are clearly well beyond the forty-five-day time limitation. Despite that, Complainant failed to provide any persuasive reasons, below or on appeal, for tolling the 45-day limitation period. Additionally, we find that Complainant failed to provide persuasive arguments as to how claims 1 to 6 sufficiently relate to claim 7 given the five-year gap between the claims. There is simply too great a time-gap for claims 1 to 7 to constitute a single act of ongoing harassment. Barney G., v. USPS, EEOC Appeal 0120132266 (Oct. 30, 2013). Moreover, based on a review of the record, it does not appear that Complainant was unaware of the relevant time limitation. Therefore, we find that Complainant failed to provide sufficient justification for extending the time limit for contacting an EEO Counselor. Failure to State a Claim: Claim 7 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). The Agency correctly determined that Complainant has not alleged a personal loss or harm regarding a term, condition or privilege of her employment. There is no allegation that Complainant was disciplined or subjected to any adverse personnel action as a result of the alleged events. 2019000481 4 In addition, to the extent Complainant is claiming discriminatory harassment, we find that the events described, even if proven to be true and viewed in a light most favorable to Complainant, would not indicate that Complainant has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of her employment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). CONCLUSION Accordingly, the Agency's decision to dismiss the complaint was proper and is hereby AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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). 2019000481 5 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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. If you file a request to reconsider and also file a civil action, 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 Carlton M. Hadden, Director Office of Federal Operations December 7, 2018 Date Copy with citationCopy as parenthetical citation