0120093339
11-19-2009
Terra L. Atkinson, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Terra L. Atkinson,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120093339
Agency No. ARALASKA07SEP03629
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 25, 2009, 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 basis of sex (female) when she was subjected to harassment
from January 8, 2007 through May 12, 2008. In support of her claim of
harassment, complainant alleged that the following events occurred.
1. From March 1, 2008 to May 15, 2008, the Mobile Equipment Maintenance
Supervisor (Supervisor) failed to counsel the Mechanic for routinely
urinating on the ground outside the Bldg 796 gate leaving a pool of
urine in complainant's path to her duty station each day
2. On December 12, 2007, the Mechanic knowingly stated falsely to the
Supervisor that complainant failed to fill three requests for material
sheets; stated to the Motor Vehicle Operator "She (complainant) never
gets me anything."
3. On November 16, 2007, the Mechanic had not used the plastic sheeting
he demanded complainant order.
4. On September 20, 2007, the Supply Technician loudly stated three times,
"Let's blame [complainant], she's the only woman here."
5. On or about September 17, 2007, the Mechanic deliberately misinformed
the hazardous waste manager (Manager) that complainant was the HAZMAT
manager and subsequently responsible for unsecured paints when in fact
the Mechanic was the HAZMAT manager.
6. On August 27, 2007, the Supply Technician told a co-worker that the
Supply Technician heard that the co-worker and complainant were sharing a
room in Fairbanks during the Hazardous Material Management System (HMMS)
training.
7. On August 23, 2007, during the Hazardous Material Management System
(HMMS) course someone repeatedly accessed complainant's on-line training
site and altered entries in her employee list to read "BUTT HEAD" and
"SUPER CRAPER."
8. On August 22, 2007, the union representative told complainant that the
Heavy Mobile Equipment Mechanic (HME Mechanic) was mad at complainant
for initiating a rumor that the HME Mechanic threatened to file an EEO
complaint if she wasn't selected to attend the HMMS training.
9. On August 20, 2007, the HME Mechanic accused complainant of saying
the HME Mechanic had been selected to attend the HMMS course as a result
of leveraging her sexuality and told complainant, "I want to make this
perfectly clear, I don't want you, dragging me into your..."
10. On August 16, 2007, the Electronics Mechanic stated that complainant
was attending the HMMS training in Fairbanks because she was a "squeaky,
whining women" and the HME Mechanic was attending because she threatened
to file a sexual discrimination complaint if she wasn't selected.
11. On August 6, 2007, the Mechanic stated, "the guy or gal, rather,
who performed mechanical work on an ambulance didn't replace a part
because it was too heavy."
The agency dismissed event (1) pursuant to 29 C.F.R. � 1614.107(a)(5)
finding that the matter was moot. The agency then dismissed events (2) -
(11) for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
The agency noted that management was not made aware of the alleged
harassment. As such, the agency found that complainant could not receive
relief on this claim of harassment. The appeal followed.
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for
the dismissal of a complaint when the issues raised therein are moot.
To determine whether the issues raised in complainant's complaint are
moot, the factfinder must ascertain whether (1) it can be said with
assurance that there is no reasonable expectation that the alleged
violation will recur; and (2) interim relief or events have completely
and irrevocably eradicated the effects of the alleged discrimination.
See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo
v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998).
When such circumstances exist, no relief is available and no need for
a determination of the rights of the parties is presented. In the
instant complaint, the agency dismissed the first event. We note that
complainant requested monetary relief regarding her claim of harassment.
As such, we find that it would be inappropriate to dismiss this event
from complainant's claim of harassment. Therefore, we reverse the
agency's decision to dismiss event (1).
In addition, the agency dismissed the remaining events raised in
complainant's claim of harassment. 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).
After a review of the agency's final decision, the Commission finds that
the agency has addressed the merits of complainant's complaint without
a proper investigation as required by the regulations. We find that
the agency determined that complainant did not make the agency aware
of the alleged harassment. Such a determination goes to the merits of
complainant's complaint, and is irrelevant to the procedural issue of
whether she has stated a justiciable 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). As such, we find that the
agency's dismissal of the remaining events (2) - (11) was inappropriate.
CONCLUSION
Accordingly, we REVERSE the agency's decision and REMAND complainant's
claim of harassment in accordance with 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 (K1208)
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 (M1208)
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 77960,
Washington, DC 20013. 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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 19, 2009
__________________
Date
2
0120093339
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120093339