Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency. Appeal No. 0120142868 Agency No. ARCEBALT14JAN00282 DECISION Complainant filed an appeal with this Commission from the Agency's final decision dated May 23, 2014, 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. BACKGROUND During the period at issue, Complainant worked as an Environmental Protection Specialist at the Agency's facility in Baltimore, Maryland. On April 11, 2014, Complainant filed a formal complaint claiming that the Agency subjected her to discrimination on the bases of sex (female) and in reprisal for prior protected EEO activity. In its final decision, the Agency determined that Complainant's formal complaint was comprised of the following claims: 1. On the basis of retaliation, [Complainant] was not selected for a 120-day Developmental Assignment/Temporary Promotion as a GS-13 Project Manager with the Programs and Project Management Division by [a named agency official]. 2. On the basis of sex (female) when [Complainant] was sexually harassed by a co-worker...when she was called upon to participate in a game at the Baltimore District Holiday Party on December 13, 2013, in which a sign was hung around her neck that had the words "Ride 'em Hard" on it. The Agency dismissed the formal complaint for failure to state a claim. Regarding claim (1), the Agency reasoned that the selecting official for the position at issue had no knowledge of Complainant's protected EEO activity and that Complainant was not qualified for the position. Regarding claim (2), the Agency reasoned that this matter was a single incident and that the Agency took immediate and appropriate corrective action when it removed the photos in question from the intranet. The instant appeal followed. On appeal, Complainant requests that we reverse the Agency's dismissal. Complainant asserts that she felt constantly humiliated during the event at issue in claim (2), and that several supervisory Agency officials were in attendance but made no attempt to intervene. She states after the event several co-workers yelled "ride'em hard" when she walked by and another co-worker suggested that she would get promoted because she liked to "ride 'em hard." In addition, Complainant asserts that photographs of her wearing the "ride 'em hard" sign were posted on the Agency's intranet site. In response, the Agency requests that we affirm its dismissal and reiterates its reasoning set forth in its final decision. In addition, the Agency asserts that Complainant has not established that the alleged incidents were based on her sex. ANALYSIS AND FINDINGS The Agency improperly dismissed the formal complaint for failure to state a claim. Regarding claim (1), the Agency's assertions that the selecting official was not aware of Complainant's activity or that Complainant was not qualified for the position at issue go to the merits of complainant's complaint, and is irrelevant to the procedural issue of whether she has stated a justiciable claim. 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). Complainant alleges that she was not selected for a temporary promotion based on her protected EEO activity. Thus, she has set forth an actionable claim and is entitled to have this claim investigated and further processed before a decision is made on its merits. Regarding claim (2), we find Complainant has set forth an actionable claim of harassment. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of a complainant's employment. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive:" and the complainant subjectively perceives it as such. Harris, supra at 21-22. Thus, not all claims of harassment are actionable. However, a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant cannot prove a set of facts in support of the claim which would entitle the complainant to relief. The trier of fact must consider all of the alleged harassing incidents and remarks, and considering them together in the light most favorable to the complainant, determine whether they are sufficient to state a claim. Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (March 13, 1997). Complainant asserts that at a holiday party, during an event in which her participation was mandatory, she had to wear a sign that said "ride'em hard". She states that a co-worker stated to the audience at the event that he was introducing a girl "who I know really likes to ride 'em hard." She asserts that Agency management was present at the activity but did not intervene. Complainant asserts that, after the activity, numerous co-workers continued making comments to her such as that Complainant would get promoted because she liked to "ride'em hard." Finally, Complainant asserts photographs of her wearing the sign "ride 'em hard" were displayed on the Agency's intranet site. When viewing the incidents collectively, in a light most favorable to Complainant, we find that she has set forth an actionable claim of harassment. Regarding the Agency's assertions that it took immediate and corrective action or that Complainant has not established that the incidents at issue were based on her sex, we find that these assertions again go to the merits of Complainant's complaint and not to the procedural issue of whether she has set forth an actionable claim. We REVERSE the Agency's final decision dismissing the formal complaint and we REMAND this matter 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 2 0120142868 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120142868