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Federal Employment Law Training - Newsletter

August 4,2011

No Way To Counsel A Complainant, Or Defend A Dismissal For That Matter

By Ernest Hadley

This case comes to me by way of Josh Bowers, a former classmate of mine at the late, great Antioch School of Law, and a lawyer of some considerable experience and expertise in federal sector EEO matters. Josh is one of several folks who, from time to time, send me OFO decisions that I might otherwise miss, thereby making me look much smarter than I really am. It's a short decision but remarkable, in part, because it covers a number of points succinctly.

So, here's what happens in Robinson v. Secretary of Army, 0120111526 (July 28, 2011). On November 3, 2010, the complainant files an EEO complaint alleging that she was sexually harassed by her supervisor from November 2009 to September 17, 2010. She also alleged that on November 13, 2010, her supervisor filed a civil action against her claiming defamation. The agency dismissed the first claim as untimely filed and the second claim as not stating a claim for relief.

The complainant filed a sworn statement that sometime in the summer of 2010, she had contacted two managers "logically connected to the EEO process, including one she identified as an "EEO Leader." According to her statement, she later met with an EEO specialist on September 22, 2010 about an incident that allegedly occurred on September 17. Although the decision does not describe the nature of the incident, it does characterize it as an alleged sexual assault. The complainant's statement also said that the EEO specialist told her she could not file an EEO complaint because a few days before the complainant had contacted the agency's Criminal Defense Command and the case was in "criminal hands." Finally, the complainant's statement also said that she was told by the specialist that if she did decide to file an EEO complaint, she had 45 days from her meeting with the specialist to do so.

The agency filed an unsworn statement from the specialist disputing the complainant's version of events stating the September 22nd meeting was "informational" and that the complainant did not exhibit the intent to initiate the EEO process. The agency argued that the meeting with the specialist wasn't "counselor contact" for complaint filing purposes.

POINT NO.1: The fact that an employment action is also potentially a criminal act does not remove it from the EEO arena. Actions in the workplace such as sexual assaults, or altercations or property damage that are at least partially motivated by discrimination may also constitute crimes. But this is not one of those situations where the EEOC applies its "collateral attack" doctrine because the complainant has remedies in another forum.

POINT NO.2: What is it with the management officials who were told of the sexual harassment in the summer of 2010 and, from all that appears in the decision, proceeded to do absolutely nothing about it? This is the very kind of "head-in-the-sand" attitude that subjects agencies to substantial liability when, as here, the harassment continues and even escalates. One can only hope these folks get their just reward. (Hint: Read some of Bill's articles on discipline.)

POINT NO.3: The agency bears the burden of proving that a complaint is untimely. With rare exceptions, a sworn statement will be deemed more credible than an unsworn statement. When a party bears the burden of proof on an issue, it's questionable whether an unsworn statement, even if uncontroverted, can carry that burden. And an unsworn statement that's controverted by a sworn statement surely ain't gonna make it.

POINT NO.4: In determining whether a complainant, in meeting with an official logically connected to the EEO process, exhibited the necessary intent to initiate a complaint, the Commission can look at external events as indicative of motive. Here, the Commission noted that the complainant promptly reported the alleged sexual assault to management officials. The complainant then went to court and obtained a restraining order against the supervisor. The complainant contacted the specialist the day after obtaining the order and within six weeks of meeting with the specialist had retained counsel and filed a formal written complaint. These were all actions that indicated an intent to initiate the EEO process at the September meeting. Because the actions were all taken within the timeframe for contacting a counselor and filing a formal complaint, the complaint was timely.

POINT NO.5: The agency screwed up the timeliness issue anyway because the filing of the defamation suit in November was simply one more act in the unlawful employment practice of creating a hostile environment based on sex. That was the very point of National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). A hostile environment is a series of acts that collectively comprise one "unlawful employment practice" that remains timely as long as one act in furtherance of the environment takes place within the statute of limitations which, in the federal sector, is the 45 days for initiating counselor contact. Thus, the entire complaint was timely in any event.

So, thanks for the case, Josh, and good work.

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