Vicky G. Dowdy, Complainant,v.Pete Geren, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionSep 19, 2009
0120083106 (E.E.O.C. Sep. 19, 2009)

0120083106

09-19-2009

Vicky G. Dowdy, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.


Vicky G. Dowdy,

Complainant,

v.

Pete Geren,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120083106

Agency No. ARCARSON08MAR01173

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated May 7, 2008, 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.

On March 17, 2008, complainant, a GS-11 Nurse Educator at the agency's

Evans Army Community Hospital, contacted an EEO Counselor and alleged

that she was subjected to a hostile work environment based on her sex when

she was sexually harassed by a co-worker from early September 2007 until

January 9, 2008. Informal efforts to resolve the matter were unsuccessful

and complaint filed an EEO complaint on April 28, 2008.

The agency dismissed the complaint for untimely EEO Counselor contact. The

agency stated that that last discriminatory incident occurred on January

9, 2008, and she contacted the EEO Counselor on March 17, 2008, beyond

the 45 day time limit set by the Regulations.

On appeal complainant states that after she was sexually harassed by her

co-worker from September 2007 through January 9, 2008, she contacted

her chain of command (her supervisor) on January 11, 2008 to discuss

the matter. She states that her supervisor then told her that he would

contact the EEO office to find out how to proceed. Complainant states

that on January 24, 2008, her supervisor appointed an investigator to

conduct an investigation into the allegations of sexual harassment and

the hostile work environment at the clinic. On February 5, 2008 the

investigator submitted the report with a recommendation that a formally

trained Equal Opportunity Representative provide training to the Wellness

Center employees. The agency conducted the recommended Prevention of

Sexual Harassment (POSH) training on February 7, 2008. Complainant stated

that she discussed her sexual harassment claim with the EEO representative

during the training and contacted the EEO Counselor on March 17, 2008.

Complainant claims that she reasonably believed that the EEO process had

been initiated once she had contacted the chain of command and discussed

the matter with the EEO representative at the POSH training.

EEOC Regulation 29 C.F.R.� 1614.105(a)(1) provides that an aggrieved

person who believes that he/she has been discriminated against on the

basis of race, color, religion, sex, national origin age or handicap

must consult a Counselor prior to filing a complaint in order to try to

informally resolve the complaint.

The agency in its comments to the Commission admitted that complainant

had discussions with the EEO representative during the POSH training

on February 7, 2008. After a review of the record in this case, the

Commission finds that complainant met her obligation to exhibit her

intent to begin the EEO process when she contacted her supervisor about

her concerns on January 11, 2008 and when she discussed the matter

with the EEO representative during the POSH training on February 7,

2008. Accordingly the Commission finds complainant's EEO Counselor

contact to be timely. The final agency decision dismissing the complaint

is REVERSED and the complaint is REMANDED to the agency for further

processing as set forth in the Order of the Commission 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 (K0408)

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 (M0408)

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 (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 (Z0408)

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

September 19, 2009

Date

2

0120083106

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

4

0120083106