Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency. Appeal No. 0120140788 Agency No. ARCEROCK13AUG02613 DECISION Complainant filed an appeal with this Commission from the Agency's final decision dated October 22, 2013, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Printing Services Specialist at the Agency's facility in Rock Island, Illinois. The record indicates that before contacting an EEO Counselor, Complainant filed a formal EEO complaint on June 19, 2013 alleging that the Agency subjected him to discrimination on the bases of race (African American), national origin (US slave descendent), sex (male), religion (Islam), color (Black), age (55), and in reprisal for prior protected EEO activity. Upon receipt of the June 19, 2013 formal complaint, the Agency's EEO Officer emailed Complainant on June 21, 2013. Therein, the EEO Officer advised Complainant of the necessity to undergo EEO counseling before filing a formal complaint. Complainant was advised to contact an EEO Counselor if he wished to pursue the matters raised in the formal complaint he had filed on June 19, 2013. On August 1, 2013, Complainant emailed the Agency's EEO Officer. The EEO Officer responded to Complainant on that same day and noted that she had not heard back from Complainant following the transmission of the EEO Officer's June 21, 2013 email referenced above. The EEO Officer requested that Complainant confirm by email that he wanted to proceed with the EEO counseling on the matters raised in his June 19, 2013 complaint. The following day, August 2, 2013, Complainant emailed the EEO Officer. Therein, Complainant reminded the EEO Officer that he had already filed a formal complaint on June 19, 2013. Complainant made no acknowledgment of the requirement for EEO counseling. Finally, the EEO Officer directed an EEO Counselor to contact Complainant regarding his concerns. After EEO counseling was completed, on August 23, 2013, the counselor sent Complainant a notice of his right to file a formal complaint. In the notice, the counselor stated: You alleged you were discriminated against on March 15, 2013 when you received subjective rather than objective performance standards, April 14, 2013 when you received a written reprimand for failure to follow instructions and on May 1 2013 when you were placed on a leave restriction. You allege you are being subjected to a hostile work environment and institutional discrimination because of your Race (African American) Color (Black) National Origin (US slave descent) Religion (Islam) and Sex (Male), Age 55 [DOB . . .] and reprisal. Subsequently, on August 28, 2013, in response to the notice, Complainant resubmitted for filing the complaint he had initially submitted on June 19, 2013. In the section of the complaint form asking for Complainant to explain how he was discriminated against, he referenced being placed on "subjective rather than objective performance standards,"1 receiving a "written reprimand/notice of proposed removal"2 and later being placed on "leave restriction." The complaint also referenced, without further detail, a denial of "proper training." Complainant indicated that by these actions he is being subjected to a "hostile work environment." On September 20, 2013, the Agency sent correspondence to Complainant requesting that he provide specific information regarding his allegations of discrimination. Complainant was asked to indicate how and when he was discriminated against, and to provide concise factual information to support each individual allegation. Complainant was advised that his failure to provide additional information could result in the dismissal of his complaint. On October 4, 7 and 9, 2013, Complainant submitted his response by email, mainly attaching copies of emails between himself and management, and indicating he was being subjected to a hostile work environement. On October 22, 2103, the Agency issued its final decision dismissing the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(7), for failure to properly respond to the Agency's written request for information. In addition, the Agency determined that Complainant's claim that he was issued a reprimand on April 4, 2013, was rendered moot and should also be dismissed in accordance with 29 C.F.R. § 1614.107(a)(5), and that his claim regarding leave restriction was untimely raised with the EEO Counselor and should also be dismissed pursuant to 29 C.F.R. § 1614.107(a)(2). The instant appeal followed. ANALYSIS AND FINDINGS Timeliness of Appeal The Agency argues that Complainant's appeal should be dismissed as untimely filed. It represents that Complainant received its dismissal decision on October 22, 2013, but did not file his appeal within the 30 days required by regulation. We are not persuaded by the Agency's argument. Our records show that Complainant filed his appeal on December 5, 2013. While the Agency's dismissal decision is dated October 22, 2013, there is no evidence supporting the claim that he received the decision on that same date. More significantly, we note that while the dismissal decision indicates that an appeal needed to be filed within 30 days of receipt, the Agency's decision provided the incorrect address for filing appeals - giving the wrong post office box number for the EEOC's Office of Federal Operations.3 Under these circumstances, we decline to dismiss the appeal as untimely filed and will proceed to address the Agency's dismissal on its merits. Failure to Properly Respond to Agency's Request for Information EEOC Regulation 29 C.F.R. 1614.107(a)(7) provides for the dismissal of a complaint where an agency has provided the complainant with a written request to provide relevant information or otherwise proceed with the complaint, and the complainant has failed to respond to the request within 15 days of its receipt or the complainant's response does not address the agency's request, provided that the request included a notice of the proposed dismissal. The Agency contends that Complainant's complaint form contained only vague and generalized allegations of "a continuation of institutional discrimination and hostile work environment." Therefore, it sent a request for information to Complainant to provide information regarding specific incidents, dates and the individuals involved in the incidents. The record shows that Complainant responded in a timely manner to the request for information. In his response, he mainly included a series of emails between himself and his direct supervisor and a higher level manager. The Agency asserts this was not responsive to its request for information and dismissed the entire complaint on this basis. We, however, disagree. A fair reading of the complaint form, in conjunction with the related EEO counseling report, reveals that Complainant's provided much more information about his claim of discrimination than the Agency represents. Essentially, Complainant alleged that he was being subjected to an ongoing hostile work environment at the hands of his named immediate supervisor and upper-level manager. In support of this claim, he offered the following incidents: on March 15, 2013, his supervisor presented him with subjective rather than objective performance standards, which he refused to sign and appealed to the upper-level manager; on April 14, 2013, when his supervisor gave him a formal written reprimand for failing to sign the performance standards; on May 1 2013, when his supervisor gave him written notice that she was placing him on leave restrictions; and when management denied his requests for training (no dates provided). In his response to the Agency's request to provide more information about these allegations, Complainant provided numerous emails between himself, his supervisor and the upper-level manager that further elucidated the controversies over Complainant's performance standards, the reprimand and the leave restrictions. Regarding training, Complainant provided an email dated June 5, 2013, from the manager which tells Complainant that all training requests are "on hold." In addition to the information provided about the incidents referenced at the time of his EEO counseling, Complainant provided emails concerning several more "fresh incidents" supporting his hostile work environment claim: (1) a September 10, 2013 email from the supervisor to Complainant critical of his work on a job, containing the phrase, "garbage in/garbage out," which Complainant found offensive; (2) a September 16, 2013 email from the supervisor, in response to an email from Complainant accusing her of discrimination and creating a hostile work environment, which stated the "tone of your email below is unprofessional and discourteous and will not be tolerated"; a September 30, 2013 email from the supervisor criticizing Complainant's lack of positive relations with vendors, customers and staff, and indicating that a continuation would be reflected in performance evaluations and could result in disciplinary action; and an October 8, 2013 email from the supervisor notifying Complainant that he could no longer work on the "DLA Rock Island & Great Lakes Office Group" account because the customer no longer wanted to work with him. In sum, we find that Complainant provided the Agency with sufficient detail, including examples of incidents, dates and parties involved, of his allegation of an ongoing discriminatory hostile work environment. Accordingly, we find that the Agency erred in dismissing the complaint pursuant to 29 C.F.R. 1614.107(a)(7). Mootness The regulation set forth at 29 C.F.R. § 1614.107(a)(5) provides for the dismissal of a complaint when the issues raised therein are moot. In its final decision, the Agency determined that Complainant's allegation concerning the written reprimand was moot because the supervisor later rescinded it. We conclude, however, that the Agency has erred in its attempt to fragment Complainant's hostile work environment claim. While the rescission of the reprimand might have rendered a stand-alone claim concerning the reprimand moot, the issuance of the reprimand and its rescission (which the record suggests was directed by upper-level management) remains viable as evidence in support of Complainant's hostile work environment claim. Therefore, we find that the Agency erred in its dismissal of this incident. Untimely EEO Counseling Contact 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. We consider the complaint filed by Complainant on June 19, 2013, to be his initial EEO counseling contact. The Agency contends that the most recent event alleged by Complainant occurred when he was placed on leave restrictions on May 1, 2013,4 and asserts his June 19 initial contact was 49 days later, beyond the 45-day limitation period. However, again the Agency is improperly fragmenting Complainant's hostile work environment claim. 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). Even untimely discrete acts, while not independently actionable, may be used as evidence in support of a timely hostile work environment claim. Complainant has clearly raised a claim of an ongoing hostile work environment involving his first level supervisor, with the support of the upper-level manager. He has provided incidents, including disciplinary and other negative personnel actions, as examples that, at least when viewed in the light most favorable to Complainant, are sufficiently severe and pervasive to state a viable hostile work environment claim. Some of the alleged incidents occurred within the limitation period, including some which occurred after he sought counseling. Thus, we find that his hostile work environment claim is timely made, and should include the earlier incidents such as the performance standards controversy, the reprimand and the notice of leave restriction. The Agency erred in dismissing on timeliness grounds. CONCLUSION Following a thorough review of the record and consideration of the arguments on appeal, the Agency's dismissal decision 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 (ongoing discriminatory hostile work environment as clarified by this decision) 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 February 3, 2015 __________________ Date 1 Complainant also indicates that he should be under "JAN-SWGRO7342849D" which he asserts contains "objective benchmarks for performance evaluation for [my] position." 2 A copy of the reprimand in the record indicates that it would be placed in Complainant's official personnel file for two years and cautioned him that "any future violations may result in more severe disciplinary actions." 3 The Agency's decision gave "P.O. Box 19848" while the correct address is "P.O. Box 77960." Mail is not forwarded from the incorrect post office box, which has been outdated for several years. 4 We note, however, that the record shows that the leave restrictions controversy went beyond the single date of May 1, 2013. The record contains a series of emails between the supervisor and Complainant concerning the leave restrictions that extends into the limitation period. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120140788 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120140788