Janet Turner v. Department of Defense
01976791
November 16, 1998
Janet Turner, )
Appellant, )
)
v. ) Appeal No. 01976791
) Agency No. W97-11
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Contract Audit Agency), )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated August 4, 1997, which the agency issued pursuant to EEOC
Regulation 29 C.F.R. §1614.107(a) and (b). The Commission accepts the
appellant's appeal in accordance with EEOC Order No. 960, as amended.
The final agency decision defined two allegations raised by the
appellant's June 17, 1997 complaint. The decision dismissed both
allegations for failure to state a claim. The decision also dismissed
allegation 1 for untimely EEO counselor contact.
Appeal Contentions
On appeal, the appellant's attorney contends that the appellant's
untimely EEO contact should be excused because she was unaware of the
45-day time limit for EEO counselor contact. The attorney also contends
that the time limit should be waived due to the appellant's reduced
mental capacity from the post traumatic stress disorder caused by the
action about which she complains in allegation 1. The attorney further
contends that the appellant's allegations were timely because they
included acts that were part of a continuing violation. In addition,
the attorney contends that the appellant's complaint states a hostile
work environment claim and a reasonable accommodation claim.
In response, the agency submits evidence that the appellant received
sexual harassment training in August 1994 and in July 1996 which included
information on the 45-day time limitation for EEO counselor contact.
The agency acknowledges that the appellant raised a third issue in her
complaint. The agency represents the allegation was counseled as part
of the appellant's second complaint (W97-12).
Allegation 1
After a review of the entire record, including the appeal submissions
of the parties, the Commission finds that the appellant's March 6,
1997 counselor contact was untimely as to allegation 1. The record
demonstrates that the appellant received training on the 45-day time
limitation in August 1994. She should have come forward at that time
with allegation 1 (allegedly in 1993 a coworker raped the appellant in
his apartment following an office party at another coworker's home).
Moreover, there is no persuasive evidence in the record that the
appellant was prevented from contacting an EEO counselor due to a lack
of knowledge of what allegedly had occurred. This is not a case in
which the individual did not remember a traumatic event. The appellant
represents in an affidavit that during the year following the incident,
she was very ashamed that a co-worker had been able to do something like
this to her and she did not want anyone to know. She also represents
that after the incident she kept trying to force herself not to think
about it. She indicates that she later learned in counseling that
she had post-traumatic stress disorder (PTSD) and was experiencing
flashbacks, constantly reliving the incident in her head. Thus, even
if the appellant did not believe until sometime in 1997 that what the
coworker had done was rape, it appears that the appellant viewed the
coworker's alleged actions in 1993 as unwelcome and inappropriate when
they occurred. Furthermore, the appellant received training in what
constitutes prohibited sexual harassment in August 1994. In addition,
the appellant was able to perform her job during this time period, as
evidenced by the promotion to a GS-12 Auditor position which she received
in 1994. Given these facts, the Commission finds no basis for extending
the time limitation for EEO counselor contact due to diminished mental
capacity.
The Commission finds no basis in the record for tolling the time
limitation for EEO counselor contact based on a continuing violation
theory because the appellant is not alleging that the coworker
continued to make unwanted advances after the one incident in 1993.
See generally, Sabree v. United Brotherhood of Carpenters and Joiners
Local No. 33, 921 F.2d 396, 402 (1st Cir. 1990) (a knowing plaintiff
has an obligation to file promptly with the EEOC or lose his claim);
Roberts v. Gadsden Memorial Hospital, 850 F.2d 1549 (11th Cir. 1988)
(per curiam) (a claim arising out of an injury which is "continuing"
only because a plaintiff knowingly fails to seek relief is exactly the
sort of claim that Congress intended to bar by the limitations period).
Accordingly, the Commission finds no basis in the record for extending
the time limitation for EEO counselor contact regarding allegation 1.
Given this finding, the Commission does not address the agency's
alternative ground for dismissing allegation 1.
Allegation 2
The Commission agrees with the agency that an allegation about a statement
which allegedly the EEO counselor made on March 12, 1997, does not, in
and of itself, state a claim of employment discrimination. Accordingly,
the Commission affirms the agency's dismissal of this allegation.
Allegations 3 and 4
The Commission agrees with the appellant's attorney that the appellant's
complaint states the following hostile work environment and reasonable
accommodation claims: (3) the presence in the appellant's workplace
of the coworker who allegedly had raped her constitutes a hostile work
environment for the appellant; and (4) the agency's alleged failure to
protect the appellant from workplace contact with the coworker (preferably
by transferring the coworker to another location) constitutes a failure
to provide a reasonable accommodation for the appellant's disability
(PTSD). These issues were raised with the EEO counselor as evidenced
by the EEO Counselor's Report.
Because the agency has not addressed these allegations, the Commission
remands the complaint to the agency for further processing.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of allegations 1 and 2; REVERSES the agency's implicit dismissal
of allegations 3 and 4; and REMANDS allegations 3 and 4 to the agency
for processing as ORDERED below.
ORDER
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. §1614.108. If possible, the agency should consolidate
the remanded allegations with the appellant's second complaint (W97-12).
The agency shall acknowledge to the appellant that it has received the
remanded allegations within thirty (30) calendar days of the date this
decision becomes final. The agency shall issue to appellant a copy of
the investigative file and also shall notify appellant 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 appellant requests a final decision without a hearing,
the agency shall issue a final decision within sixty (60) days of receipt
of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. §1614.503 (a). The appellant 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. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. §§ 1614.408 and 1614.409. 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© (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. §1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. §1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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 (Z1092)
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:
November 16, 1998
______________
Date Ronnie Blumenthal, Director
Office of Federal Operations
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