Stacey L. Knowlton, Jr., Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 0120121642 Agency No. 2012-24254-FAA-05 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 26, 2012, dismissing a formal 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 During the period at issue, Complainant worked as a Air Traffic Control Specialist at the Agency's Air Traffic Control Tower, FAA Metroplex HUB in Dallas, Texas. On November 3, 2011, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. On January 11, 2012, Complainant filed the instant formal complaint. Therein, Complainant claimed that he was subjected to harassment and a hostile work environment on the bases of race, sex and in reprisal for prior protected activity when: 1. On October 28, 2011, he was provided with a food run list by a co-worker and was to pick up food from Chick-fil-A. Since controllers can't always get up and go to lunch, a good run is very common. After Complainant had picked up and delivered the food, another co-worker posted on Facebook that he "would make the next food run to a racist restaurant and see if his Black ass wants to complain. If he does, I will laugh in his face." Complainant stated that he does not have a Facebook account. Complainant also stated that he was not sure who the co-worker was talking about since both he and the person who wrote the food order list are black. It was later inferred that the co-worker was upset about the choice of Chil-fil-A as a restaurant run because it is allegedly an anti-gay establishment. Complainant personally never confronted the co-worker about his Facebook posting and have not had any further incidents with this co-worker. Complainant stated that the environment was uncomfortable after the Facebook posting and that the co-worker could have voiced his problem with the restaurant choice in a different manner; and 2. his training was undermined to ensure failure/termination. In its January 26, 2012 final decision, the Agency dismissed claim 1 pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Specifically, the Agency found that unless the conduct is severe, a single incident or group of isolated incidents will not state a claim of discriminatory harassment. The Agency dismissed claim 2 pursuant to 29 C.F.R. § 1614.107(a)(2) for failure to bring the instant claim to the attention of an EEO Counselor. CONTENTIONS ON APPEAL On appeal, Complainant, through his representative, argues that he is subjected to ongoing harassment. For instance, Complainant argues that the Agency erred dismissing his formal complaint because it only focused on a few derogatory remarks about a food run. Complainant further states that he "did not raise these issues separately or in a vacuum. He expressed the issues as a one continuous process or hostile environment in which he was systemically degraded then discarded." Moreover, Complainant argues that he was in a training environment "in which he was treated differently from similarly-situated employees when he was mocked, verbally disrespected, his training was sabotaged/undermined, and his career was destroyed." ANALYSIS AND FINDINGS Claim 1 The Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment by dismissing claim 1 for failure to state a claim. A fair reading of the matters identified in those claims reflect that Complainant claims that he was subjected to a series of related harassing incidents from October 2011 to present. In his formal complaint, Complainant requested to be reassigned to a different division; expungement of his training records; implementation of a training policy that assures equal training time and opportunity for all employees; EEO training for all responsible management officials and employees; and compensation as a remedy. These matters, taken together, are reflective of an actionable claim of harassment. By alleging a pattern of harassment regarding allegation 1, Complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993). Claims 2 The Agency also improperly dismissed claim 2 finding that Complainant failed to bring this claim to the attention of an EEO Counselor. In her report, the EEO Counselor stated that on November 30, 2011, Complainant contacted her concerning his concerns about "his training. He stated that he was being trained by [a named employee (E1)] and was told a couple of weeks ago (after filing the complaint) that he needed to have a different perspective on training and was being trained by [a named employee (E2)]. The [Complainant] stated that while training under [E1] there were no issues. However, since training under [E2], the [Complainant] has been struggling and has been hounded by him...The [Complainant] just learned that [E1] and [employee who posted the Facebook comment] are very close." Claim 2 is sufficiently related to the other portions of the harassment claim to be considered as part of that claim. The Commission has held that "[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence." EEOC Compliance Manual, Section 2, Threshold Issues at 2 - 75 (revised July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)). The record reflects that various incidents comprising Complainant's harassment/hostile work environment claim occurred within the 45-day time period preceding Complainant's November 3, 2011 EEO Counselor contact, as discussed above. Because a fair reading of the record reflects that the matter identified in claim 2 is part of that harassment claim, we find that the Agency improperly dismissed it on the grounds of failure to bring the claim to the attention of an EEO Counselor. Accordingly, we REVERSE the Agency's final decision dismissing Complainant's formal complaint, defined herein as a harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (E0610) The Agency is ordered to process the remanded claim (harassment/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). 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 June 15, 2012 __________________ Date 2 0120121642 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120121642 6 0120121642