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EEOC REVERSES AGENCY DECISION ON TIMING OF EMPLOYEE'S SEXUAL HARASSMENT COMPLAINT

Government Employee Relations Report May 2, 2006

The U.S. Air Force improperly dismissed an employee's hostile environment complaint on timeliness grounds by considering examples of the harassment as separate incidents, the Equal Employment Opportunity Commission has decided in (Peacock v. Wynee, EEOC, Appeal No. 01A52025, 4/5/06).

Sharon Peacock was a procurement clerk who complained to an EEO counselor July 20, 2004, about sexual harassment by supervisor Mark Ferris. Between 2000 and 2003, Ferris allegedly fondled and exposed his penis to Peacock, told her about his sexual relationship with his wife, spoke to her about the size of his penis, grabbed her hand and attempted to place it on his penis, placed his penis on Peacock's shoulder while she was sitting at her desk, put his hands down her pants and into her shirt, asked her to lift her dress and expose her vagina, and placed his penis close to her face.

Peacock also claimed that Ferris and two other supervisors attempted to intimidate her into remaining silent.

She filed a complaint Oct. 8, 2004, and the Agency dismissed her claims. The Air Force determined that Peacock did not make timely contact with an EEO counselor as prescribed by Title VII of the 1964 Civil Rights Act.

Present Continuing Violations. On Appeal, Peacock noted another groping incident not previously mentioned to the agency. She explained that, being unrepresented by counsel when she filed her original complaint, she did not know that she had to mention each and every incident of sexual harassment.

"The Supreme Court has held that a complaint alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period," EEOC wrote in a decision signed by Office of Federal Operations Director Carlton M. Hadley, citing National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 88 FEP Cases 1601, 70 USLW 4524 (2002).

"A fair reading of the EEO complaint in this case indicates that complainant was raising a single claim of sexual harassment, allegedly committed by the same management official, and resulting in a hostile work environment," the commission noted. The Air Force, while referring to the events as "examples" rather than "incidents," treated them as separate claims requiring separate complaints.

"As noted above, this piece-meal adjudication was improper because the incidents that make up a hostile work environment claim collectively constitute one single unlawful employment practice," EEOC determined. "In fact, the very nature of hostile work environment claims involve repeated conduct that occurs over a series of days, months or even years."

Although the agency dismissed Peacock's intimidation claims on other grounds, the commission found that they constituted part of the hostile work environment claim and that Peacock filed her complaint in a timely manner.

Joshua F. Bowers of Washington, D.C., represented Peacock.

Rita Looney of Andrews Air Force Base, Md., represented the agency.

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