Sexual Harassment Complaint Reinstated
The EEOC’s Office of Federal Operations (OFO) recently reinstated a sexual harassment complaint dismissed by the Department of the Army as untimely, and reinstated a second claim of reprisal based on the supervisor’s filing a civil suit of defamation against the complainant, Crystal Robinson. Edward Passman, a founding principal of Passman & Kaplan, is co-counsel in the case, Crystal Robinson, Complainant v. John H. McHugh, Secretary, Department of the Army, Agency, EEOC Appeal No. 0120111526 (July 28, 2011).
Robinson contacted the EEO counselor on September 22, 2010 to complain about an incident of alleged sexual harassment that took place at the Aberdeen Proving Grounds five days earlier on September 17. The EEO counselor erroneously told Robinson that she could not file an EEO complaint because she had also filed a criminal complaint against the harasser. Within six weeks, Robinson hired counsel and filed her formal complaint on November 3, 2010. The agency dismissed the formal complaint on grounds of timeliness, claiming that Robinson’s September 22, 2010, meeting with the EEO counselor “did not qualify as counselor contact” for the purposes of the 45-day time limit on initiating EEO complaints. The OFO rejected this argument, holding that an agency cannot mislead an employee on EEO procedures and then dismiss a discrimination complaint as untimely filed.
The agency supported its assertion of denial of counselor contact with an unsworn and undated statement from the EEO counselor. Robinson countered with her sworn affidavit, however, and the OFO held that a complainant’s sworn affidavit is more credible than an unsworn statement by an agency EEO specialist. The OFO therefore gave greater weight to Robinson’s detailed description of the EEO specialist’s flatly erroneous statements that Robinson had “no basis for an EEO complaint” than to the agency’s contradictory, unsworn statement that the counselor told Robinson she had 45 days from the date of the incident to pursue a discrimination complaint.
The OFO also restored Robinson’s second claim of reprisal based on the allegedly harassing supervisor’s subsequent defamation suit against her. The OFO ruled that the alleged harasser’s civil suit against Robinson constituted “part of the same unlawful practice” as the earlier alleged acts of alleged harassment, that it should not have been dismissed for failure to state a claim, and that Robinson’s filing of the second complaint fell within the 45-day filing period after the alleged discriminatory act.