Federal Employment Law Training - Newsletter
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
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.