_________________, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (U.S. Coast Guard), Agency. Appeal No. 0120122331 Agency No. HS-USCG-01896-2011 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated April 4, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as an Assistant Group Supervisor, WS-2604-15, at the Agency's United States Coast Guard Yard in Baltimore, Maryland. On September 12, 2011, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. On November 23, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination on the bases of disability and in reprisal for prior protected activity when: 1. in 2007, his manager called him a "rogue foreman;" 2. on March 23, 2009, management issued him a notice of proposed suspension for 14 days; 3. in July 2009, management suspended him for 14 days; 4. from December 23, 2008 until April 4, 2011, management removed his supervisory duties and reassigned him; 5. on August 29, 2011, he was asked by a manager for a copy of the affidavit he provided to an EEO Counselor regarding an informal case where he was identified as the Responsible Management Official; and 6. on September 27, 2011, an EEO employee threatened to conduct surveillance on his group after a sexual harassment allegation. In its April 4, 2012 final decision, the Agency dismissed claims 1 - 4 on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on September 12, 2011, which was beyond the 45-day limitation period. The Agency also dismissed claims 5 - 6 pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Specifically, in addressing claims 5 - 6, the Agency determined that Complainant failed to show he suffered a personal loss or harm to a term, condition or privilege of his employment. The Agency further dismissed reprisal as a basis. The Agency determined that there was no evidence that Complainant had engaged in any prior protected activity. Specifically, the Agency noted in his formal complaint, Complainant merely alleged that his prior protected activity consisted of being named as a responsible management official in an EEO complaint of another employee. The Agency determined that the Commission has held that being named as a responsible management official in an EEO complaint does not constitute a protected activity, and fails to state a claim. ANALYSIS AND FINDINGS Claims 5 - 6; and the basis of reprisal 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, .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). Regarding claims 5 and 6, a fair reading of the instant complaint reflects that Complainant alleged that he was subjected to harassment and a hostile work environment when his manager called him a "rogue foreman;" management issued him a notice of proposed suspension and later suspended him for 14 days; his supervisory duties were removed and was reassigned to a different position; a manager asked him for a copy of his affidavit he provided to an EEO Counselor regarding an informal case wherein he was identified as the responsible management official; and an employee threatened to conduct surveillance on his group following a sexual harassment allegation. Complainant has stated a valid claim because these charges address a present harm or loss with respect to a, term, condition, or privilege of employment. Given the circumstances of this case, the Commission determines that Complainant has raised a justiciable claim on bases covered by the pertinent EEO statues. Regarding reprisal as a basis, we discern nothing in the record that reflects that Complainant engaged in prior protected activity, and find no reason to disturb the Agency's dismissal of this basis. However, to the extent that the record would support a determination that Complainant had indeed not engaged in any prior protected activity, the subject claims would nonetheless remain viable because of the raised basis of disability. Claims 1 - 4 The Agency also improperly dismissed claims 1 - 4 on the grounds of untimely EEO Counselor contact. The record reflects that Complainant initiated EEO Counselor contact on September 12, 2011. 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 September 12, 2011 EEO Counselor contact, as discussed above. Because a fair reading of the record reflects that the matter identified in claims 1 - 4 is part of that harassment claim, we find that the Agency improperly dismissed it on the grounds of untimely EEO Counselor contact. Accordingly, we REVERSE the Agency's final decision dismissing Complainant's formal complaint on the basis of disability, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. However, the Agency's decision to dismiss reprisal as a basis is AFFIRMED. ORDER The Agency is ORDERED to process the remanded claims (on the basis of disability) 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 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 (T0610) 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 (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 September 11, 2012 __________________ Date 2 0120122331 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013