David C. Smith, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency. Appeal No. 0120071175 Agency No. AREUHEID06AUG03041 DECISION Complainant filed a timely appeal with this Commission from the agency's decision dated November 8, 2006, dismissing his 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Background In his complaint, complainant alleged that he was subjected to discrimination on the bases of race (Caucasian), color (White), disability (degenerative disc disease), age (D.O.B. 07/27/54), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when: 1. In April 2004 management initiated an investigation against complainant; 2. Because of the ongoing investigation, complainant's 2004 annual rating was postponed and when he received his award it was reduced from 5 to 3 percent; 3. The Deputy Commander (RMO1) disapproved a two-year extension of complainant's detail and instead approved only a one-year extension; 4. Around February 2005 or shortly thereafter, RMO ordered an audit of complainant's time and attendance records; 5. In June 2005, a misconduct investigation was commenced against complainant; 6. The investigating officer conducting the misconduct harassed complainant's wife at her workplace; 7. In February 2006 a management official (RMO2) cancelled complainant's attendance at a pre-command course; 8. In August 2006, another misconduct investigation was initiated against complainant; and 9. Shortly thereafter, complainant was relieved of his duties and detailed to another position. The agency dismissed the claim pursuant to 29 C.F.R. § 1614.107(a)(7) for failure to respond to a request for additional information in a timely manner. The agency offered additional grounds for dismissal for a number of the issues above. Regarding issues 1 through 7 inclusive, the agency found that complainant failed to contact and EEO Counselor in a timely manner. The agency further found that these claims did not constitute a continuing violation alleging a hostile work environment. Regarding issues 8 and 9 (consolidated in the FAD and identified as issue 6) the agency dismissed for failure to state a claim. On appeal, complainant argues that the agency's dismissal pursuant to § 1614.107(a)(7) was improper and that his response to the agency's request for additional information was timely. Regarding claims 1 through 7, inclusive, complainant argues that the acts constitute a single ongoing violation, together with other, timely-raised acts, and are thus timely. Regarding issues 8 and 9, complainant argues that these issues state a valid claim of discrimination. Analysis and Findings The regulation set forth at 29 C.F.R. § 1614.107(a)(7) states that the agency shall dismiss a complaint where the agency has provided complainant with a written request for information and the complainant has failed to respond within 15 days of its receipt. Complainant has shown that he received the request on October 16, 2006 and mailed his response to the agency on October 31, 2006. We therefore find that complainant timely responded and that dismissal under § 1614.107(a)(7) was improper. Regarding the agency's dismissal of certain issues for untimely EEO Counselor contact, the Supreme Court has held that a complainant 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. See National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id. Following a review of the record, we find that issues 1, 2, 3, 4, 5, and 7 are discrete actions, untimely presented. The record shows complainant did not contact an EEO Counselor until August 7, 2006, which is beyond the forty-five (45) day limitation period. Accordingly, these issues were correctly dismissed. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive:" and the complainant subjectively perceives it as such. Harris, supra at 21-22. Thus, not all claims of harassment are actionable. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment. A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant cannot prove a set of facts in support of the claim which would entitle the complainant to relief. The trier of fact must consider all of the alleged harassing incidents and remarks, and considering them together in the light most favorable to the complainant, determine whether they are sufficient to state a claim. Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). Regarding issue 6, the Commission finds that the complaint fails to state a claim under the EEOC regulations because, even when including the earlier, untimely presented acts as background evidence, complainant failed to show that the harassment complained of had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Nor has he shown she suffered a harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). With regards to issues 8 and 9 we find complainant states a claim. We note that an agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). As regards reprisal, the Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Department of the Army, EEOC Request No. 05970939 (April 4, 2000). Under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15; see also Carroll, supra. The agency found that issues 8 and 9 failed to state a claim because the investigation and detail were, according to the agency, justified and in compliance with agency regulations. Furthermore, the agency argues, an employee being placed in a detail does not incur harm. We disagree. We note initially that the argument that the investigation and detail were justified and in compliance with agency regulations is an argument that goes to the merits and is inappropriate at this stage until after the agency has conducted an investigation of the complaints. Regarding issue 8, we agree that merely being investigated does not result in harm. We find, however, that being investigated and involuntary detailed are actions that are reasonably likely to deter protected activity. Therefore complainant states a claim of reprisal. While the agency argues that the management official (RMO3) was unaware of complainant's prior protected activity, we find that such an argument goes to the merits of the claim. Furthermore, as regards issue 9, we find that being relieved of one's duties and involuntarily detailed to another position results in harm or loss to a term, condition, or privilege of employment and that complainant states a claim. Accordingly, the agency's final decision dismissing complainant's is AFFIRMED in part and REVERSED in part and we remand issues 8 and 9 for a supplemental investigation in accordance with the following ORDER, and the applicable EEOC Regulations. ORDER (E0900) The agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. 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 (K0501) 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 19848, Washington, D.C. 20036. 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 (M0701) 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), 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 19848, Washington, D.C. 20036. 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 (T0900) This decision affirms the agency's final decision/action in part, but it also requires the agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the agency issues its final decision on your complaint. 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 April 26, 2007 __________________ Date 2 0120071175 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P. O. Box 19848 Washington, D.C. 20036 6 0120071175