Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. Appeal No. 0120142708 Agency No. 14-61142-00727 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated June 20, 2014, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Federal Police Officer at the Agency's facility in Washington, D.C. On December 30, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to harassment and discrimination on the bases of sex (male), disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973 when: a. In June 2013, when Complainant was getting off work when his second line supervisor (Supervisor) touched his shoulder and said, "you look nice in your uniform I see you are losing weight." Complainant indicated that he was taken off guard and was so uncomfortable that he left without saying anything. He found it inappropriate for the Supervisor to touch him. b. On October 30, 2013, the Supervisor while talking to fellow co-workers, approached him and handed him documents saying, "Here go your FMLA paperwork." The Supervisor then invaded his personal space, smiling, and said to him, "You smell good!" She intentionally came close to him so that he was made to feel harassed and uncomfortable in her presence. c. On August 27, 2013, the Supervisor instructed him to come to her office and denied him a union representative when he asked. He stated he was in pain but stood there and took the "abuse of authority." He indicated that he had ended up going to the emergency room. d. On August 20, 2013, Complainant was placed on Absence Without Official Leave (AWOL). He invoked Family Medical Leave Act (FMLA) on August 19 - 21, 2013, because of his back. The Supervisor insisted that he not invoke FMLA for August 20, 2013. He disagreed because of what is stated in the collective bargaining agreement (CBA). He complained to the Supervisor but she let the AWOL stand. e. On June 4, 2013, Complainant stated his FMLA had been approved but the Supervisor continued to scrutinize his requests for leave under FMLA and other leave. f. He was told on August 26, 2013, by the Supervisor that he had to go to his first line supervisor or the Supervisor for leave requests. g. He is being treated differently when it comes to invoking FMLA. h. Complainant felt that since he spoke to management about the Supervisor reporting to duty later every day and missing roll call, she retaliated against him regarding his use of FMLA. i. On August 23, 2013, the Supervisor sent Complainant an email instructing him to plan ahead for invoking FMLA. He noted that this was not always possible with his chronic back issues. The Agency dismissed the complaint. The Agency dismissed allegations (a) and (b), pursuant to 29 C.F.R. § 1614.107(a)(1), finding that Complainant failed to show that the alleged harassment was sufficiently severe or pervasive to state a claim of harassment. The Agency then dismissed allegations (c) and (d), pursuant to 29 C.F.R. § 1614.107(a)(1), for mootness finding that Complainant is no longer under the Supervisor's chain of command. Finally, the Agency dismissed allegations (e) - (i), asserting that although Complainant alleged that these events occurred in reprisal for protected activity, the events were not such that would dissuade a reasonable employee from engaging in protected activity. In addition, the Agency noted that the Supervisor is no longer in Complainant's chain of command. The instant appeal followed. ANALYSIS AND FINDINGS Failure to State a Claim 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). 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). As an initial matter, we find that the Agency has mischaracterized the essence of the complaint at hand. The Agency appears to confine Complainant's harassment claim to the incidents described in allegations (a) and (b) of the complaint. However, a fair reading of the complaint reveals that Complainant appears to be alleging that his Supervisor engaged in an ongoing pattern of harassment, from June through October 2013, that included what he considered inappropriate conduct, charging him with AWOL and harassing him concerning his use of leave, including FMLA leave. Thus, we find that the Agency acted improperly by treating matters raised in Complainant's complaint in a piecemeal manner. See Meaney v. Dep't of the Treasury, EEOC Request No. 05940169 (Nov. 3, 1994) (an agency should not ignore the "pattern aspect" of a complainant's claims and define the issues in a piecemeal manner where an analogous theme unites the matter complained of). Consequently, when Complainant's allegations are viewed in the context of his claim of ongoing harassment, based on both discriminatory factors and reprisal, they state a claim and the Agency's dismissal for failure to state a claim was improper. We also note that the Agency has argued that Complainant's allegations concerning the treatment of his FMLA requests should be dismissed as a collateral attack on another proceeding. We, however, disagree. Complainant is not challenging an adjudicatory process or decision under the control of the Department of Labor. Rather, it appears he is alleging that the Supervisor used her authority to approve or disapprove his FMLA requests as part of the alleged ongoing pattern of discriminatory harassment.1 As such, it states a claim. Mootness The Agency has also argued that this EEO complaint has been rendered moot because Complainant left the Agency on June 28, 2014, on a disability retirement and, therefore, is no longer under the authority of the Supervisor. 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. To determine whether the issues raised in complainant's complaint are moot, the factfinder must ascertain whether: (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo v. Dep't of the Navy, EEOC Request No. 05970343 (July 10, 1998). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented. We find that the Agency has not established that the effects of the alleged discrimination have been completely and irrevocably eradicated. We acknowledge that Complainant has not expressly sought compensatory damages as a remedy. However, we note that Complainant stated in his formal complaint that the actions by the Supervisor created "unwanted stress, elevated hypertension, and flare-ups of [his] chronic lower back pain." We find that Complainant's statement indicates a claim for compensatory damages. See Miller v. U.S. Postal Serv., EEOC Appeal No. 01944372 (Feb. 7, 1995) (finding that complainant's statement regarding physical and mental anguish to be sufficient to place the agency on notice that she may be seeking compensatory damages). As such, we find that there is relief that may be available for Complainant and that dismissal of the matter pursuant to 29 C.F.R. § 1614.107(a)(5) is not appropriate. CONCLUSION Accordingly, we REVERSE the Agency's dismissal of this complaint, correctly characterized as a claim of ongoing harassment, and we REMAND the complaint to the Agency 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 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 January 6, 2015 __________________ Date 1 Moreover, to the extent the Agency has argued in its brief that the Supervisor was following the instructions of the Agency's Labor & Employee Relations department, it is making an improper decision on the merits of the claim without a proper investigation as required by the regulations. The Agency's proffered reasons for the Supervisor's actions are irrelevant to the procedural issue of whether Complainant has stated a justiciable claim. See Osborne v. Department of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United States Postal Service, EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642 (August 15, 1991). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120142708 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120142708