Alexis M. Pierce, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency. Appeal No. 0120110631 Agency No. DOS-F-085-10 DECISION Complainant filed a timely appeal from a final agency decision (FAD) dated September 28, 2010, 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. ISSUE PRESENTED Whether Complainant’s EEO complaint was properly dismissed on grounds of untimeliness and failure to state a claim. BACKGROUND During the period in question, Complainant worked as a Policy Analyst with the Department of Homeland Security (DHS). In that capacity, she functioned as a liaison to the State Department (the Agency) focusing on reconstruction and stabilization. In and around May 2009, Complainant was on a tour of duty in Germany, working as an Agency employee. Complainant asserts that, on May 10, 2009, while visiting a friend outside of duty hours, she was sexually assaulted by an individual who, at the time, was an Agency contractor.1 This individual subsequently became a permanent employee of the Agency. The record does not indicate in what capacity he was employed or the date his employment began. After making several attempts to report the sexual assault and being redirected to various components in DHS, Complainant was eventually directed to contact DHS’ EEO office, which she did on June 1, 2009. The record suggests that DHS engaged in limited EEO counseling, but took no action to process Complainant’s allegations as a potential EEO complaint. Instead, approximately a week after her June 1 contact, DHS effectively dismissed Complainant from the EEO process, concluding that it could not entertain her issues because the alleged attacker was not its employee. DHS then advised Complainant to contact the Agency, which she did on June 11, 2009. Soon thereafter, a criminal investigation was initiated by the Violent Crimes Unit of the Agency’s Office of Diplomatic Security. Complainant was cautioned to refrain from discussing the May 10 incident until the investigation was complete. In October 2009, the Agency referred the matter to the Department of Justice (DOJ) for prosecution upon finding probable cause to believe Complainant’s allegations were true. For reasons not reflected in the record, DOJ took no action. On October 23, 2009, pursuant to the advice of the Violent Crimes Unit investigator, Complainant contacted the Agency’s Office of Civil Rights (OCR). During the next six or seven months, she interacted with various OCR representatives whose activities focused primarily on resolving the matter as opposed to exploring or clarifying the extent of any EEO implications. On May 24, 2010, Complainant filed a sparsely worded formal complaint which contained a single averment of discrimination relating to the sexual assault and several items of requested relief. In a September 28, 2010 FAD, the Agency dismissed the May 24 complaint upon finding that it failed to state a claim and that Complainant failed to timely contact an EEO counselor. The instant appeal followed. We note that Complainant is pro se. CONTENTIONS ON APPEAL In a statement accompanying her appeal, Complainant argues that the chronology of relevant events belies the Agency’s finding that she was untimely in initiating EEO counseling. She also appears to raise questions regarding the trustworthiness of the FAD by noting several errors of fact reflected in the Agency’s reasoning. The Agency filed no response. ANALYSIS AND FINDINGS We begin with an analysis of the rationale underlying the Agency’s determinations regarding the timeliness of Complainant’s counseling contact and the actionable nature of her complaint. Consistent with our responsibility to conduct a de novo review, 2 we will ultimately determine, independently, whether the complaint should be dismissed. The Agency’s Timeliness Determination The Commission’s regulation at 29 C.F.R. § 1614.105(a)(1) requires that an aggrieved individual contact an EEO counselor within 45 days of the date of the matter alleged to be discriminatory. The Agency found that Complainant failed, without good cause, to meet this requirement. While it remains unclear what (if any) employment claim(s) Complainant seeks to assert, it is sufficient, for timeliness purposes, to note that the record overwhelmingly supports a finding that, at minimum, the alleged sexual assault was an integral aspect of a “matter” that Complainant believed to be discriminatory. The Agency does not dispute that the alleged assault occurred on May 10, 2009. Nor does it dispute that Complainant first sought counseling on June 1, 2009 with DHS. The Agency’s finding that Complainant was untimely is premised on the apparent view that her DHS contact had no significance under subsection 105(a)(1). We conclude that it did. To rule otherwise would require the Commission to ignore the plain wording of the subsection, which provides only that aggrieved individuals contact “a” Counselor within the stated time. There is no requirement that the Counselor be from the agency that receives the complaint.3 In this case, Complainant logically initiated contact with a Counselor in the agency where she was employed. It is self-evident that June 1, 2009 is within 45 days of May 10, 2009. We, therefore, find that Complainant’s counseling contact was timely and reverse the Agency’s dismissal on this ground. The Failure To State A Claim Determination The Commission’s regulation at 29 C.F.R. § 1614.107(a)(1) authorizes an agency to dismiss a complaint that fails to state a claim that can be remedied through the EEO process. In its FAD, the Agency concluded that Complainant failed to assert a remediable claim because neither she nor her alleged attacker was functioning in work status when the “event in question” occurred. The non-work status of Complainant and her alleged attacker, on May 10, 2009, would likely be dispositive of this appeal were we to find that the “matter” in question, when the complaint was filed, was clearly confined to the alleged assault.4 Such a finding cannot be made, however, on the basis of the current record. We are mindful, initially, that the counseling process was unduly erratic and prolonged in this case. Indeed, more than a year had elapsed before Complainant was provided the opportunity to file a formal complaint. Several events occurred, in the interim, which are potentially relevant to the sufficiency of her complaint. For instance, by the time the complaint was filed, there had been a change in status of the individual the Agency believed had “probably” assaulted Complainant. He went from being an Agency contractor to an Agency employee. Although it is not clear whether, as a DHS “liaison” to the Agency, Complainant had (or would have) been required to work with (or for) this individual, we find it significant that, at some point prior to filing the complaint, Complainant resigned from federal service. The record suggests that the resignation was under duress and may have related to a requirement that she refrain from discussing her ordeal. See Complaint File, April 21, 2010 email from Complainant to named Agency official (“I don’t want to be forced to keep [the attacker’s] secret when I’m the one being hurt and losing.”) At this juncture, we do not know how (if at all) Complainant’s employment may have been affected by the May 2009 incident. The record is wholly undeveloped in this regard. However, we can say that, if the Agency had directed Complainant to remain silent in order to protect the alleged attacker or facilitate his employment, it could hardly be found (as the Agency did) that the incident did not “involve” any term or condition of her employment. Without suggesting that the known facts in this case, by necessity, implicate a potential claim of “sexual harassment,” it is relevant to note that the Commission has recognized that harassment which occurs outside of work may state a claim when the effect of the off-duty incident creates an “intolerable influence on the employee’s working conditions.” Kokangul v. Department of the Army, EEOC Appeal No. 01A61380 (July 6, 2006) We make no finding with regard to the existence of a viable discrimination claim arising from the May 2009 incident. We merely find that deficiencies in processing, as well as the record, render it impossible to determine the full measure of the concerns Complainant sought to pursue through the EEO process. The quality of the EEO counseling, provided by the Agency and DHS, left much to be desired in terms of ensuring the record would be adequate to assess the sufficiency of any formal complaint that Complainant might file. 5 It is unclear, for example, why the Complaint File does not include the Violent Crime Unit’s report, given its obvious relevance to the matter that prompted Complainant to seek EEO counseling. Also inexplicably missing from the record is a “statement” Complainant apparently prepared during the course of the counseling process.6 The absence of this and other information renders the record insufficient to determine the nature of any claim Complainant may have sought to assert. Finally, we note that the Agency also relied on 29 C.F.R. § 1614.106(a) as a ground for dismissing the complaint, finding that Complainant should have filed it against DHS because the alleged attacker was a DHS contractor.7 This ground is also found to be without merit. There is nothing in the record that contradicts the statements made by Complainant and others that her attacker was a contractor (and later an employee) of the Agency—not DHS. CONCLUSION Upon considering the unusual circumstances surrounding this matter, as well as Complainant’s pro se status and obvious unfamiliarity with the EEO process, we VACATE the Agency’s FAD and REMAND this matter for further EEO counseling in accordance with the Order below. ORDER The Agency shall acknowledge to the Complainant that it has received the remanded matter within thirty (30) calendar days of the date this decision becomes final. The Agency shall not later than fifteen 15) days thereafter reconstitute the pre-complaint process on Complainant’s “matter” consistent with the requirements of 29 C.F.R. § 1614.105. The Agency shall consider the matter to include any employment actions, decisions or events that Complainant believes to be related to the May 10, 2009 incident. The Agency’s EEO counseling report shall be appropriately documented. A copy of the Agency’s letter of acknowledgment to Complainant and a copy of the Agency’s EEO counseling report shall be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610) 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 (M0610) 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), at 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 (R0610) 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 (Z0610) 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 June 16, 2011 __________________ Date 1 The incident took place in an Agency-leased apartment in Prague, Czech Republic. 2 See 29 C.F.R. 1614.405(a). 3 Cf. Byrd v. Dept. of Agriculture, EEOC Request No. 05900291 (May 30, 1990) (absence of EEO counseling with the Office of Personnel Management no bar to joining OPM as a party to complaint against the Department of Agriculture since counseling with Agriculture was sufficient.) 4 The FAD correctly notes that the May 2009 incident does not, alone, give rise to a gender discrimination claim. 5 EEO Counselors are required to “assist” complainants in “articulating” their claims. See Equal Employment Opportunity Management Directive (MD)-110, Chapter 2 at 2-8. (November 9, 1999). That was not done in this case. 6 See Notice of Appeal, Attachment F (March 31, 2010 email referencing Complainant’s “work related” statement.) 7 Subsection 106(a) provides that a complaint “must be filed with the agency that allegedly discriminated against the complainant.” --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120110631 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120110631