Stacey Bulluck, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120114276 Agency No. 200400102011101637 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated August 31, 2011, dismissing her 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Staff Assistant, GS-12, at the Agency’s Office of the Under Secretary for Health in Washington, DC. On May 12, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination and a hostile work environment1 on the basis of race (African-American). In support of her claim, Complainant offered the following incidents: A. From July to September 2010, Complainant’s supervisor did not give her work assignments at the daily staff meetings like he did for her Caucasian co-workers. She also alleged that, unlike her Caucasian coworkers, he would not speak with her in a civil tone, or greet her socially. B. In September 2010, unlike others, she was not given a laptop computer for home use. C. On October 4, 2010, Complainant’s supervisor accused Complainant of failing to coordinate a briefing and spoke to her in a condescending manner. D. In October 2010, Complainant was often reduced to tears and her supervisor taunted Complainant for having a meltdown. E. On November 19, 2010, Complainant’s supervisor embarrassed her by ignoring her in front of her co-workers. F. On November 19, 2010, Complainant’s supervisor moved Complainant from the Office of the Chief of Staff to assist in the Office of Executive Correspondence without her concurrence. G. On November 29, 2010, Complainant was officially detailed to the position in the Office of Executive Correspondence. H. On January 6, 2011, in an effort to completely remove her from his office, Complainant’s supervisor tried to “permanently” reassign Complainant to the Office of Regulatory Affairs, but she refused because the position did not have an equivalent career ladder to the position she occupied. I. On April 14, 2011, management announced Complainant’s Staff Assistant position under vacancy announcement number VHA-11-17255-463693-CJ, despite the fact that she was only on a detail. In its final decision, the Agency determined that claims A-G were untimely filed. Specifically, the Agency determined that the events described in claims A-G were distinct concrete acts which occurred between July and November 2010. The Agency contends therefore that Complainant’s EEO Counselor contact on January 26, 2011, regarding those events was well beyond the applicable time limitation for EEO contact. The Agency dismissed claims H and I of the instant complaint for failure to state a claim. The Agency determined that concerning claims H and I, Complainant failed to demonstrate that she suffered any harm with respect to the terms and conditions of her employment. The instant appeal followed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. A fair reading of the complaint in this case, in conjunction with the August 17, 2011 letter from Complainant’s attorney to the Agency’s EEO Officer, makes it clear that Complainant has raised a claim of a discriminatory hostile work environment. 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). In this case, Complainant’s allegations are linked together with a common theme – that her immediate supervisor harassed and mistreated her because of her race and made a number of efforts to remove her permanently from his office. Several of her allegations occurred within 45 days of the date she sought EEO counseling. Accordingly, her entire hostile work environment claim was timely raised and should not have been dismissed by the Agency on timeliness grounds. We further conclude that Complainant’s allegations, if considered together in the light most favorable to Complainant, state a viable hostile work environment claim under the EEOC regulations. 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). The Commission has held that where a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim may survive as evidence of harassment if it is sufficiently severe or pervasive to alter the conditions of the complainant’s employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). We find that the events described, if proven to be true, might indicate that Complainant has been subjected to discriminatory harassment that was sufficiently severe or pervasive to alter the conditions of her employment. See Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED and the complaint is REMANDED to the Agency for further processing in accordance with the following Order. ORDER (E0610) The Agency is ordered to process the remanded claim (hostile work environment) in accordance with 29 C.F.R. § 1614.108 et seq. 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 (K0610) 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 77960, Washington, DC 20013. 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 (M0610) 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), at 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 77960, Washington, DC 20013. 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0610) 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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 March 14, 2012 __________________ Date 1 Complainant’s attorney, in an August 17, 2011 letter to the Agency’s EEO Officer, made it clear that Complainant was raising a hostile work environment claim. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120114276 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120114276