_________________,
Complainant,

v.

Ray Mabus,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120120501

Agency No. 11-00168-02023

DECISION

Complainant filed a timely appeal with this Commission from the Agency's
decision dated October 4, 2011, 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.  Upon
review, the Commission finds that Complainant's complaint was improperly
dismissed for failure to state a claim and for untimely EEO contact.
For the following reasons, we REVERSE the Agency’s decision and REMAND
the complaint to the Agency for further processing.

BACKGROUND

During the period at issue, Complainant worked as the Deputy Department
Head-Radiology at the Agency’s Walter Reed National Military Medical
Center facility in Washington, DC.  Complainant was a supervisor.

On May 4, 2011, Complainant filed a formal complaint alleging that the
Agency subjected him to a hostile work environment and discrimination
on the bases of his race (African-American), color (light-skinned),
sex (male), and national origin (Africa).  In chronological order,
Complainant alleged discrimination, when:

1. On August 23, 2010, after his supervisor approved his travel request,
the Agency denied Complainant’s request for a travel reimbursement
for an official government trip for no reason, causing Complainant to
have to pay out of pocket;


2. On August 26, 2010, a senior level official, the Assistant Deputy-
Administration (Assistant Deputy), was hostile to Complainant’s
co-worker to get back at Complainant;
3. On September 30, 2010, the Assistant Deputy provided false information
to Complainant and later rejected Complainant’s accretion of duties
packet, while approving one for a female employee and himself, but
denying Complainant a pay increase;
4. On October 13, 2010, the Assistant Deputy made untrue statements
about Complainant’s job performance during a meeting with leadership;
5. In November of 2010, the Assistant Deputy acted in a hostile
manner towards Complainant when the Assistant Deputy changed three of
Complainant’s employees’ retention incentives without an explanation
to Complainant;
6. On January 10, 2011, the Assistant Deputy made untrue statements
about Complainant’s job performance during a meeting with Leadership;
7. On January 12, 2011, the Assistant Deputy caused Complainant stress
that required Complaint to have to go to the emergency room for treatment;
8. On January 28, 2011, the Assistant Deputy harassed Complainant
by sending an email stating that he had not received Complainant’s
objectives, even though the Assistant Deputy was not Complainant’s
supervisor or a part of Complainant’s rating chain; and
9. On March 4, 2011, the Assistant Deputy made a false accusation against
Complainant, claiming that Complainant violated the HIPAA regulations
and relayed the false information to Complainant’s supervisor.

In his complaint, Complainant seeks relief in the form of promotion,
back pay, attorney’s fees and compensatory damages.

On October 4, 2011, the Agency issued a final decision dismissing
the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) and 29
C.F.R. 1614.105(a). The Agency concluded that Complainant failed to
state a claim “because none of [Complainant’s] alleged claims show
that ‘he has] been aggrieved by any Agency action.”  The Agency
also concluded that the claims of harassment and retaliation “are not
sufficiently severe, and / or pervasive to constitute or to rise to the
level of illegal harassment” and “did not interfere with the work
environment.” Decision at page three.

In addition, the Agency dismissed Complainant’s complaint for untimely
counselor contact. The Agency found that Complainant did not make
contact until April 6, 2011, which was 223 days after Complainant’s
travel request was denied and well beyond the 45 day limitation period.
The Agency added that the record “does not support your claim of
retaliation by management” and that “the claims are not sufficiently
severe and / or pervasive to rise to the level of illegal harassment.”

On appeal, Complainant asserts that the Agency erred in dismissing his
complaint because the Agency failed to consider that he is alleging an
ongoing hostile work environment and that his allegations are valid
and timely since his last claim was timely filed within the 45 day
period. Therefore, Complainant requests that the Commission reverse the
Agency’s dismissal of his complaint.

The Agency did not file a brief in opposition to the appeal.

ANALYSIS AND FINDINGS

Failure to State a Claim

The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim.  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, 1614.106(a).

The Agency found that the claims were not severe or pervasive enough
to rise to the level of illegal harassment.  We disagree. Here,
the record reflects that Complainant has raised a viable claim that
the Agency subjected him to a hostile work environment, comprised of
numerous incidents, including but not limited to, subjecting him to false
accusations, negative comments about his performance, interfering with his
supervisory responsibilities, denying him an accretion-of duties-promotion
that the Agency provided to a female employee, denying him reimbursement
for government travel and subjecting him to harassment and stress that
allegedly forced him to go to the hospital emergency room.

Further, the Agency recognized in its decision that Complainant was
raising claims of retaliation.  In the Agency’s Notice of Dismissal,
the Agency states “Your complaint . . . does not support your claim of
retaliation by management.” [emphasis added]. We note that the Agency
did not address any reprisal claims.

With regard to reprisal discrimination, the Commission has stated, in
Whipple v. Department of Veterans Affairs, EEOC Request No. 05910784
(February 21, 1992) that:

The anti-reprisal provision of Title VII protects those who participate
in the EEO process and also those who oppose discriminatory employment
practices.  Participation occurs when an employee has made a charge,
testified, assisted, or participated in any manner in an investigation,
proceeding or hearing.

Finally, we note that Title VII protects a person "where the employee
has a reasonable, good faith belief that the challenged employment
practice violates Title VII, even if the belief is later found to be
mistaken. Pomerantz v. Federal Deposit Insurance Corp., EEOC Appeal
No. 0120120266 (March 21, 2012).

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). Applying these standards, we conclude
that Complainant has stated claims of harassment / hostile work
environment retaliation with regard to the incidents referenced in his
nine allegations.

Timeliness

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.

In this case, we find that Complainant contacted the Agency within 45
days of the most recent incident on March 4, 2011, the date he alleged
that the official falsely claimed that Complainant violated the law.
The record shows that Complainant brought to the Agency’s attention
his concerns regarding actions by the named official and his belief that
management’s ongoing actions were based on unlawful discrimination
against him.

With regard to his allegations pertaining to incidents from August 23,
2010 to January 28, 2011, Complainant has raised a claim of ongoing
harassment/ hostile work environment.  The U.S. 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. See Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002).  We find that
the alleged actions are part of the same harassment practice.

Where, as here, there is an issue of timeliness, "[a]n agency always bears
the burden of obtaining sufficient information to support a reasoned
determination as to timeliness."  Guy, v. Department of Energy, EEOC
Request No. 05930703 (January 4, 1994) (quoting Williams v. Department
of Defense, EEOC Request No. 05920506 (August 25, 1992)). In this case,
the Agency did not provide support for its conclusion that the complaint
was time-barred.

Following a review of the record, we find that the Agency has not
satisfied its burden of establishing that Complainant did not make timely
EEO contact.

CONCLUSION

For the above reasons, we find that the Agency erred when it dismissed
Complainant’s complaint.  Accordingly, we REVERSE the Agency’s final
decision dismissing Complainant’s complaint and REMAND the entire
complaint for further processing in accordance with the ORDER below.


ORDER (E0610)

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 (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 tends 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

April 10, 2012

__________________
Date



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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013




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0120120501