Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency. Appeal No. 0120142716 Agency No. ARCEGALV14MAY01615 DECISION Complainant filed an appeal with this Commission from an Agency final decision, dated June 23, 2014, dismissing a formal complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Program Manager for the U.S. Army Corps of Engineers - Galveston District facility in Galveston, Texas. Believing that she was subjected to sexual harassment, Complainant contacted an EEO Counselor. Informal efforts to resolve Complainant's concerns were unsuccessful. On June 6, 2014, Complainant filed a formal complaint based on reprisal. The Agency framed the claims as follows: (1) On January 27, 2014, Complainant noticed her supervisor massaging her co-worker on the back. She told the supervisor, her second-line supervisor, and EEOO that this behavior was considered to be offensive and that the behavior should be discontinued. Therefore Complainant did not file an EEO complaint. Then from that point on, Complainant's supervisor started to retaliate against her in the following manner: (a) She told Complainant that Complainant was not allowed to contact her second-line supervisor or any management personnel. (b) She monitored and questioned Complainant's every action. (c) She told Complainant that she could not associate with Complainant's working group. (2) On February 27, 2014, another incident happened between Complainant and her supervisor as follows: (a) Complainant's supervisor asked her, "Why were you with [Employee H]", a former Resource Management employee. Complainant told her that she was providing reference that was cited in one of the appointment memorandums. Complainant's supervisor said that she would check with the Deputy to make sure that the pamphlet was needed. (b) Complainant's supervisor waved a document at her and asked, "Why were you sending it to her for dissemination because this was your job". Complainant told her supervisor that she had, "explicitly demanded that you do not send out operational email." Then the conversation continued until Complainant stated that she wanted to stop the conversation and find her union representative. Complainant's union representative escorted her to the First Aid Room, where she rested, her blood pressure was taken, and she went home. (3) On March 7, 2014, Complainant's supervisor restricted her from using her leave. (4) On March 10, 2014, Complainant's supervisor refused to allow her to use administrative time to go to the initial EAP (Employee Assistance Program) visit. (5) On March 21, 2014, Complainant received an email from her supervisor asking her for an explanation about each change that she was making to the Manning document by paragraph and line number. (6) On March 31, 2014, Complainant's supervisor sent her an email stating "Please abstain from addressing any subject matter related to the IMD." In the instant final decision, the Agency dismissed the formal complaint on the grounds of mootness, finding that on April 24, 2014, Complainant entered into a settlement agreement that resolved a January 15, 2014 EEO complaint. The Agency reasoned that the instances alleged in the instant formal complaint filed on June 6, 2014, "are similar to and were part of the basis for your grievances filed March 27, 2014 and April 9, 2014, both of which were voluntarily dismissed by you in the settlement agreement of April 24, 2014 . . . ." Further, the Agency noted that the settlement the agreement specifically provided for the withdrawal of the March and April 2014 grievances, as well as "a full and complete settlement of any and all issues and claims arising from the circumstances of the aforementioned EEO complaint." Complainant filed the instant appeal. ANALYSIS AND FINDINGS 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. The Agency's dismissal on these grounds was predicated upon its reliance on the execution of the referenced settlement agreement. On appeal, Complainant argues that the April 24, 2014 settlement agreement settled a September 2013 EEO complaint (Case No. ARCEGALV13SEPT03163) "initiated while working under a different supervisor and in a different branch with a different Position Description" and based upon age. She contends that the instant reprisal claims have "nothing to do with the former complaint that was settled" and the Agency's dismissal was improper. A review of the record reveals that the September 2013 complaint referenced above, concerned the reassignment of Complainant's duties to younger employees. Complainant cited age as a basis and later added reprisal. The settlement agreement, resolving the September 2013 complaint, addressed a November 2013 Letter of Reprimand and a February 2014 Decision on Proposed Suspension. Additionally, the agreement provided for the permanent reassignment of Complainant "from her current position in the District Resource Management Office to the position of Program Analyst . . . in the District Programs Management Branch." In response to Complainant's appeal, the Agency argues that "many" of the incidents in the instant complaint "were made a part of a previous age discrimination and hostile work environment EEO complaint (Case No. ARCEGALV13SEPT03163) and three negotiated grievances and one administrative process filed between September 23, 2013 and April 9, 2014." We do not find, however, that the Agency's assertion is supported by the record.1 As noted above, the earlier EEO complaint concerns the reassignment of duties. The referenced grievances address discipline (Letter of Reprimand, Proposed Suspension). Meanwhile, the complaint before us distinctly alleges retaliation for reporting sexual harassment. The April 24, 2014 settlement agreement obligated Complainant to withdraw "any and all other pending informal or formal EEO complaints." She did not, however, initiate contact with an EEO Counselor for the instant complaint until May 6, 2014. The Agency itself notes, on appeal, that after January 1, 2014 "transitions associated with the September 2013 reorganization were formalized and made final" Complainant was placed with the supervisor at issue. Thereafter, the alleged events transpired, and in April 2014, the settlement was executed. The Agency states that a week later, Complainant expressed concerns that the agreement did not adequately address the harassment by the supervisor and she contacted the EEO Counselor. We acknowledge that the alleged events may have occurred prior to the execution of the agreement. However, we do not find that they are covered by the agreement, and Complainant's initial EEO contact regarding the events came after the settlement was executed. The Agency's contention that "these issues and other acts of harassment were raised by Complainant during discussions and negotiation of the settlement" is unpersuasive. Specifically, such purported intentions were not reduced to a writing and included in the resulting agreement. Moreover, the Commission is not persuaded by the remainder of the Agency's contentions on appeal. For example, the Agency argues that the alleged events "do not rise to the level of an adverse employment action". The Agency is reminded that Complainant has alleged harassment. Moreover, Complainant has raised the basis of reprisal. The Commission interprets the statutory retaliation clauses "to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998). Therefore, we find that the Agency used the incorrect standard to address whether or not Complainant stated a claim. The alleged increased scrutiny, prohibition on contacting any management personnel or associating with her working group, and restricting leave usage would be reasonably likely to deter one from utilizing the EEO process. After contending that the complaint fails to state a claim, the Agency proffers detailed legitimate, non-discriminatory reasons for its actions in each incident. We find that by doing so, the Agency has inappropriately addressed the merits of the complaint without a proper investigation as required by the regulations. The Agency's articulated reasons for the actions in dispute are irrelevant to the procedural issue of whether Complainant has stated a justiciable claim under Title VII. See Osborne v. Dep't of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. U.S. Postal Serv., EEOC Request No. 05930220 (Aug. 12, 1993); Ferrazzoli v. U.S. Postal Serv., EEOC Request No. 05910642 (Aug. 15, 1991). Finally, the Agency, for the first time on appeal, argues that the complaint should alternatively be dismissed on the grounds of untimely EEO Counselor contact. According to the Agency, the first act of retaliation occurred on January 27, 2014, approximately 14 weeks before she contacted the EEO Counselor. The most recent incident, on March 10, 2014, occurred 56 days before Complainant's May 6, 2014 contact. The Agency reasons that Complainant waited well beyond the 45-day time limit to initiate contact with the EEO Counselor. The Commission finds, however, that since the Agency did not rely on untimeliness of EEO Counselor contact for the dismissal in its June 23, 2014 decision, and we will not therefore address these new grounds when first raised on appeal. CONCLUSION The Agency's final decision to dismiss the formal complaint is REVERSED. The formal complaint is REMANDED 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 8, 2015 __________________ Date CERTIFICATE OF MAILING For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below: Patricia I. McDonald 1 South Shore Dr Galveston, TX 77551 Department of the Army Director, EEO Compliance and Complaints Review, (EEOCCR) ATTN: SAMR-EO-CCR (Spurgeon A. Moore) 5825 21st Street, Bldg 214, Room 129 Fort Belvoir, VA 22060-5921 __________________ Date ______________________________ Compliance and Control Division 1 Pre-complaint documents for Case No. ARCEGALC13SEPT03163 are included, but a copy of the formal complaint was not provided. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120142716 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120142716 8 0120142716