Complainant,

v. 

Ashton B. Carter,
Secretary,
Department of Defense
(National Geospatial-Intelligence Agency),
Agency.

Appeal No. 0120122957

Agency No. NGAW-09-P22

DECISION

On July 12, 2012, Complainant filed an appeal from the Agency's June 14, 2012, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.  The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a).  

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Geospatial Intelligence Analyst at the Agency's facility in St Louis, Missouri.  

On June 30, 2009, Complainant contacted the EEO Counselor alleging discrimination.  On September 25, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of age (64) when, he was subjected to a hostile work environment since 2005 by management.  In support of his claim, Complainant alleged that the following events occurred:

1. From 2005 to present, Complainant has been continually criticized for his work by management and supervisors have not defined his work role or provided sufficient or concrete objectives and expectations about work;
2. In 2005, Complainant was warned about speaking with Senior Management;
3. In 2005, the new team lead (Team Lead1) stated he had been sent "to provide adult leadership";
4. In 2006, Team Lead1 told Complainant that a former site manager (Former Manager) was no longer in St. Louis to protect him;
5. From 2006 to 2008, Team Lead1 continually told Complainant that management did not like him, closely scrutinized his work, and did not provide constructive feedback;
6. In approximately January 2008, the new team lead (Team Lead2) stated that he had something from Team Lead1 that could be used against him in the future.
7. In February 2008, Team Lead3 replaced Team Lead1.  Complainant asked Team Lead3 whether he had been sent to the facility to get rid of Complainant.  In September 2008, Team Lead3 informed Complainant that they wanted him to leave or lose his honor;
8. In approximately January 2009, the Supervisor informed Complainant that the Office of the Inspector General would be investigating him based on an anonymous complaint of Time and Attendance Fraud;
9. On May 18, 2009, the Supervisor served Complainant with a Letter of Reprimand;
10. On 25 May 2009, the Supervisor gave Complainant a counseling Memorandum of Record that asserted additional deficiencies in his behavior and questioned his integrity.

The Agency issued a partial dismissal on October 22, 2009.  The Agency accepted event 9 for investigation.  The Agency dismissed the other claims for failure to state a claim and untimely EEO Counselor pursuant to 29 C.F.R. § 1614.107(a)(1) and (2).  The Agency found that Complainant failed to show that he was subjected to events which were severe or pervasive enough to state a claim of harassment.  Further, the Agency noted that events 1-8 were raised outside of the 45 day time limit.  The AJ indicated that event 10 was also to state a claim.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ).  Complainant initially requested a hearing but later withdrew the request.  The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).  The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.

Complainant appealed asserting that the Agency's investigation failed to address his claim of hostile work environment which involved more than just the single incident in event 9.  He claimed that the Agency's dismissal was not appropriate.  

By letter dated August 14, 2012, OFO notified the Agency of the filing and that it was required to submit a copy of the entire complaint file within thirty (30) calendar days of the Agency's receipt of the letter of notification.  The August 14, 2012 letter advised the Agency that failure to submit the entire complaint file within the specified time frame could result in the Commission drawing an adverse inference.  The Agency filed its brief in opposition to Complainant's appeal on November 13, 2012.  However, the Agency failed to comply with this notice, and OFO had not received the complete complaint file.  As such, on March 2, 2015, OFO issued a Notice to Show Good Cause Why Sanctions Should Not Be Imposed.  The Agency provided OFO with the complaint file in response to the Notice.  We find that the record is now complete and we can address the appeal.

ANALYSIS AND FINDINGS

We note that the Agency issued a partial dismissal of events 1-8 and 10.  Complainant has challenged the Agency's dismissal.  We find that Complainant's legal claim of harassment was improperly fragmented, or broken up, during EEO complaint processing.  We have said that fragmented processing comprises a complainant's ability to present an integrated and coherent claim of unlawful employment discrimination. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (MD-110), Chapter 5, Section III (November 9, 199). Here, the dismissed claims (events 1 - 8 and 10) should be considered with the remaining claim (event 9) when evaluating Complainant's allegations of ongoing age-based harassment.  

Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).  If complainant cannot establish that he is aggrieved, the Agency shall dismiss a complaint for failure to state a claim.  29 C.F.R. § 1614.107(a)(1). We note that Complainant alleged a series of events asserting that management tired to create a hostile work environment including tangible and intangible employment actions.  As such, we find that Complainant has stated a single claim of harassment based on events 1-10. Therefore, we conclude that the Agency's dismissal of events 1-8 and 10 pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim was not appropriate. 

The Agency also dismissed events 1-8 pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact.   The Supreme Court has held that a hostile work environment claim is an amalgamation of incidents that "collectively constitute one unlawful employment practice." National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). Unlike discrete acts, the incidents that comprise a hostile work environment claim "cannot be said to occur on any particular day" and by their "very nature, involve repeated conduct." Id. at 115. Because a hostile work environment claim is comprised of various incidents, the entire claim is actionable if at least one incident occurred within the filing period.
 
Federal sector complainants must raise at least one incident of the claim to an EEO Counselor within 45 days of its occurrence. As long as this is done, other earlier incidents of the claim that independently would be untimely, are deemed properly raised. A discrete act may be part of a hostile work environment claim. See Compliance Manual at § 2-IV.C. 1.b. Further, if an untimely discrete act is part of timely hostile work environment claim, complainant may "only challenge the act as pan of a hostile work environment claim." Id. Recovery for the discrete act is unavailable for the act in and of itself, but is available for the act as part of the hostile work environment. See Madison v. IBP, Inc., 330 F.3d 1051, 1061 (8th Cir. 2003).
 
Here, it is undisputed that Complainant raised events 9 and 10 within the forty-five (45) day time frame. Further, the record reflects that Complainant is alleging harassment. The entire complaint, taken as a whole, states a claim of harassment. The Agency's October 22, 2009 partial dismissal of claims 1 -8 and 10 was therefore inappropriate.
 
CONCLUSION

Therefore, we VACATE the Agency's final decision finding no discrimination on claim 10. We also REVERSE the Agency's dismissal of claims 1 - 8, and 10, on the grounds of failure to state a claim. We REMAND all 10 claims to the Agency to conduct a supplemental investigation in accordance with the ORDER herein.
  
ORDER
 
The Agency is ORDERED to take the following actions:

The Agency shall complete a supplemental investigation within 60 days from the date this decision becomes final in accordance with 29 C.F.R. § 1614.108. The supplemental investigation will focus on the alleged incidents previously dismissed, specifically, claims 1-8 and 10 in Complainant's complaint of discrimination. Thereafter, the Agency shall provide Complainant, within 30 days from the date the Agency completes the supplemental investigation, an opportunity to respond to the investigative report. The Agency 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 on all claims within sixty (60) days of receipt of Complainant's request.
 
A copy of the completed supplemental investigation 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

July 16, 2015

__________________
Date


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0120122957






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



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0120122957