01986805
04-05-2000
Treamel Boles, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Treamel Boles v. Department of the Army
01986805
April 5, 2000
Treamel Boles, )
Complainant, )
)
v. ) Appeal No. 01986805
) Agency No. 98-W18VA1-001
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
____________________________________)
DECISION
On September 9, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) pertaining to her complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. <1>
The agency characterized complainant's complaint as alleging that she
was subjected to discrimination on the bases of sex (female) and in
reprisal for EEO activity (reporting sexual harassment) when:
After ending a consensual romantic relationship with [a named co-worker]
in March 1997, he continued to make comments to her and stare at
her; and
On March 12, 1998, in an all hands meeting, the Commanding Officer
told a joke about how the Army's basic training was really about how
to sexually harass someone and get away with it.
Pursuant to EEOC Regulations, the agency's August 11, 1998 FAD dismissed
claim (1) for untimely EEO Counselor contact, and claim (2) for failure
to state a claim. Specifically, for claim (1), the agency determined
that because complainant's March 16, 1998 initial EEO Counselor contact
occurred more than forty-five days after the July 1997 date she reported
the acts of harassment to the command, it was untimely. With regard to
claim (2), the agency determined that because the comment described was
not directed to her, and was not followed up with any adverse actions,
complainant failed to show how she was aggrieved in a term, condition
or privilege of employment.
The record indicates that, in addition to the allegations as stated above,
complainant has asserted numerous other specific claims of harassment.
In her complaint, complainant asserted that "[a]fter several months
of repeatedly saying NO to his request for sex and to his persistence
on paging me, calling me, pinning me in corners at work, and pleading
with me to go away with him," she inquired in July 1997, as to the
policy on sexual harassment and spoke with the commanding officer.
Her complaint also stated that she requested an investigation in late
September 1997, but after several months of waiting for a response,
she still endured harassment "in the form of phone calls, under breath
comments, staring, intimidating looks, invasion of personal space and
overall intimidation." Complainant's EEO Counselor's report additionally
notes that complainant's harasser "sen[t] her love letters at work,
page[d] her on her beeper, sen[t] her love notes on her computer and
came into her work space uninvited," and that "these occurrences are
happening on a regular basis and are still occurring to date." In her
response to an agency request for additional information, complainant
also contends that through December 1997, she received frequent phone
calls from her harasser at home and work, and that in January through
March 1998, he would meet her everyday as she left to stare at her as
she walked down the hall. Finally, on appeal, complainant contends that
"up to April 1998 the harassment continue[d] in some form or another,"
and that "weekly, if not daily, there was some form of harassment" until
her last day of work. With regard to her reprisal claim, complainant's
complaint notes possible disciplinary action against her and on appeal
she also asserts that "[f]urther attempts at reprisal [were made] in
the form of slander and military disciplinary action."
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 days of the date of
the matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five 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 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 she 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.
The Commission has held that the time requirement for contacting an EEO
Counselor can be waived as to certain allegations within a complaint
when the complainant alleges a continuing violation, that is, a series
of related discriminatory acts, one of which falls within the time
period for contacting an EEO Counselor. Moreover, as here, evidence
showing complainant had or should have had a reasonable suspicion of
discrimination more than forty-five days prior to initiating EEO Counselor
contact will not preclude acceptance of the overall claim of ongoing
discrimination. See Howard - Grayson v. United States Postal Service,
EEOC Request No. 05990160 (Dec. 3, 1999). If one or more acts falls
within the time period for contacting an EEO Counselor, the complaint
is timely with regard to all that constitute a continuing violation,
provided the acts are interrelated by a common nexus. Meaney v. Dept. of
the Treasury, EEOC Request No. 05940169 (November 30, 1994); Verkennes
v. Dept. of Defense, EEOC Request No. 05900700 (September 21, 1990).
Here, the record reveals that complainant clearly raised numerous specific
allegations of harassment that continued up until and beyond her EEO
Counselor contact in March 1998. As part of her claims, complainant
alleged a number of incidents of harassment that occurred less than
forty-five days prior to her counselor contact. These incidents are
connected with complainant's untimely incidents by her claim that
the actions were taken against her as part of a pattern of continuing
harassment. Accordingly, the otherwise untimely incidents alleged by
complainant must be accepted as a continuing violation. We therefore find
that the agency's dismissal of complainant's claim of sexual harassment
for untimely EEO Counselor contact was improper.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 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).
With regard to claim (2), complainant alleged a series of events which
occurred from March 1997 through April 1998. Specifically, complainant
alleged that she was subjected to harassment which created a hostile
work environment, and that the agency took action in reprisal for her
reporting the harassment. Instead of treating complainant's allegation
of reprisal as an incident related to her claim of harassment, however,
the agency looked at one alleged incident of reprisal individually.
See EEOC Policy Guidance on Current Issues of Sexual Harassment at 3,
N-915-050, No. 137 (March 19, 1990). Thus, the Commission finds that
the agency acted improperly by treating matters raised in claim (2)
in a piecemeal fashion. See Meaney v. Department of the Treasury,
EEOC Request No. 05940169 (November 3, 1994) (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 matter
complained of). Consequently, when claim (2) is viewed in the context
of complainant's complaint of harassment, it states a claim and the
agency's dismissal for failure to state a claim was improper.
We note that on appeal, complainant asserts additional incidents of
unspecified harassment occurring up to April 1998, as well as further
attempts at reprisal. Recently revised EEOC Regulation 29 C.F.R. �
1614.106(d) provides, in pertinent part, that a complainant may amend
a complaint at any time prior to the conclusion of the investigation
to include issues or claims like or related to those raised in the
complaint. Therefore, since it appears that complainant would like
to include additional incidents of alleged harassment and reprisal,
she should be afforded the opportunity to amend her complaint under the
revised regulations. As such, the agency shall notify complainant of
the opportunity to amend her complaint under 29 C.F.R. � 1614.106(d)
as outlined in the Order below.
Accordingly, the agency's final decision dismissing complainant's
complaint is REVERSED. The case is REMANDED to the agency for further
processing in accordance with this decision and the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall notify complainant of the opportunity to amend
her complaint under 29 C.F.R. � 1614.106(d) to include new incidents of
harassment or reprisal like or related to those raised in the complaint.
If complainant wishes to amend her complaint to include new incidents of
harassment or reprisal like or related to those raised in the complaint,
she shall notify the agency of the amendments to her complaint within
fifteen (15) calendar days of her receipt of the agency's notification.
The agency shall process the remanded claims, along with any accepted
claims from provision (1) above, in accordance with 64 Fed. Reg. 37,644,
37,656-7 (1999) (to be codified and hereinafter referred to as 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.
A copy of the agency's notice of the opportunity to amend the complaint
and the letter of acknowledgment to complainant must be sent to the
Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (R1199)
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:
April 5, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.