Angela G. Hyman, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. Appeal No. 0120100060 Agency No. 096238100008 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated August 17, 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. BACKGROUND At the time of the events giving rise to this complaint, Complainant worked as an Ordinary Seaman on ships within the Agency’s Military Sealift Command based in Norfolk, Virginia. According to the Agency, civil service mariners like Complainant are assigned to ships for period of approximately four months, then either assigned to another ship, assigned on shore to one of two Customer Support Units, or placed on leave. On April 13, 2009, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the basis of sex (female) when she was sexually harassed by male shipmates aboard the USNS Alan Shepard, and when she was subsequently terminated from her position effective August 19, 2008. Complainant was onboard the USNS Alan Shepard from April 10 to May 8, 2008. In her formal complaint and the related EEO counseling report, Complainant alleged that the first incident of sexual harassment occurred right after she came aboard the ship when, on April 11, 2008, she knocked on the door of a male shipmate to ask if she could use the bathroom that adjoined both their sleeping quarters. He told her that he would unlock the door on the side of her quarters. When the door was unlocked and she entered the bathroom, she alleged that the male shipmate was in the bathroom completely naked. Complainant stated this made her very uncomfortable and she was afraid, after this incident, to use her bathroom. Complainant reported the incident to the ship’s Chief Mate (also referred to as the First Officer), who moved her to another room several days later. However, Complainant alleged that on April 20, 2008, a different male shipmate grabbed her and threw her against the bulkheads and asked her for sex. She refused and he let her go. Complainant alleged that this same man grabbed her again and restrained her against the bulkheads on April 21, 23 and 25, 2008. Complainant stated that he threatened that if she “didn’t give it to him, he was going to take it.” The man worked in the kitchen as a “steward utility man,” so Complainant alleged she started skipping meals to avoid him. Despite Complainant’s effort to avoid him, she alleged that on May 2, 2008, while she was on watch, the same steward grabbed her by the wrist and pulled her back toward him and put her hand on his penis and said, “you know you want it.” Complainant alleged that again on May 5, 2008, the steward followed her while she was on watch and grabbed her from behind and put his hands between her legs. Complainant said she got away and immediately reported the incident to the 3rd Mate on watch. On May 6th, Complainant provided a statement of her sexual harassment claims to the Chief Mate and the 3rd Mate. Complainant alleges that the Chief Mate promised her that he would see that an EEO complaint was filed on her behalf. Complainant was taken off the ship and examined by an agency physician for situational anxiety, who classified her as “not fit for sea duty.” Her termination was later recommended by the Agency’s Labor Relations department for “failure to maintain a regular schedule” because of her absence from work. Complainant alleged that she should not have been terminated when her absence from work was caused by the sexual harassment she experienced aboard ship. Following her termination, on October 14, 2008, Complainant contacted the EEO office at the Military Sealift Fleet Support Command by email. The Agency deemed this to be her initial request for EEO counseling. The Agency dismissed the matter, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact, arguing that the latest event was Complainant’s termination on August 19, 2008, but she did not initiate EEO counselor contact until 56 days later, beyond the 45-day limitation period. The instant appeal followed. In her appeal, Complainant reiterates the incidents of alleged sexual harassment and states that when she reported the matter onboard the ship she thought she was filing an EEO complaint. ANALYSIS AND FINDINGS 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 (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The record discloses that the alleged sexual harassment occurred in April and May 2008, and Complainant’s termination was effective on August 19, 2008, but Complainant did not initiate contact with an EEO Counselor until October 14, 2008, which is beyond the forty-five (45) day limitation period. However, all time limitations in 29 C.F.R. Part 1614 are subject to waiver, estoppel and equitable tolling. 29 C.F.R. § 1614.604(c). Complainant has argued that when she reported the incidents of sexual harassment to the Chief Mate in May when she was still aboard the ship, he assured her that an EEO complaint would be filed on the matter. Therefore, Complainant asserts that she did not know she needed to additionally contact an EEO counselor. The Agency counters that Complainant had been provided with EEO training during her employment and should have known that she needed to contact a counselor within the 45-day period. The Commission has held that in order to establish EEO counselor contact, an individual must contact an Agency official logically connected to the EEO process and exhibit an intent to begin the EEO process. See Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996). In the instant matter, Complainant was aboard a ship when the alleged harassment occurred, a ship without an EEO counselor or EEO office. It is undisputed that she promptly reported the alleged sexual harassment to the Agency official she had available to her – the Chief Mate, who took her statement and apparently conducted some sort of inquiry into her allegations. Complainant alleges he told her that he would make sure her EEO complaint was filed and she believed she had started the EEO complaint process. The Chief Mate provided a statement denying he made any such promise. Under the unique facts of this case, we conclude that Complainant timely contacted an appropriate Agency official available to her under her circumstances and exhibited an intent to begin the EEO process. Therefore, we deem Complainant’s initial EEO contact as timely made. Accordingly, the Agency’s dismissal decision is hereby REVERSED, and the complaint is REMANDED to the Agency for further processing in accordance with the following Order. ORDER (E0610) The Agency is ordered to process the remanded complaint in accordance with 29 C.F.R. § 1614.108 et seq. 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 (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 May 26, 2011 __________________ Date 2 0120100060 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120100060