Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency. Appeal No. 0120143216 Agency No. ARAPG14JUN02453 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated August 19, 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 a Public Affairs Liaison at the Agency's Assembled Chemical Weapons Alternatives in Aberdeen, Maryland. On August 4, 2014, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected her to discrimination in reprisal for prior EEO activity when: on May 7, 2014, the EEO Officer questioned her about her ongoing EEO complaint, attempted to coerce her into stating her EEO complaint was being fully addressed, and refused to allow her to contact her attorneys during the meeting. Complainant alleged that she and another employee (Complainant SS) had filed complaints of ongoing discriminatory harassment against the same individual. She stated that on May 7, 2014, a "Federal Investigator" arranged to meet with her and Complainant SS to discuss their allegations. The EEO Officer was also present at this meeting. Complainant said that both she and Complainant SS asked to contact their attorneys for representation during this meeting, but the EEO Officer refused to allow them to contact their attorneys. Complainant alleged that the EEO Officer (who was not involved in the processing of their complaints) asked about the status of those complaints and attempted to pressure Complainant and Complainant SS into saying that everything was "all right," which Complainant disagreed with because she believed that the alleged perpetrator of the harassment was still harassing them, including a "stalking" incident, which caused her to be fearful for her safety. On August 19, 2014, the Agency dismissed issued a final decision. The Agency dismissed Complainant's formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), on the grounds that it was untimely filed. Specifically, the Agency determined that the August 4, 2014 formal complaint was filed more than fifteen days after it determined that Complainant had received the Notice of the Right to File a Formal Complaint of Discrimination (Notice), on July 18, 2014. The Agency also dismissed the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim, finding that Complainant was not aggrieved. The instant appeal followed. Complainant, on appeal, argues that she timely filed her complaint on August 4, 2014. Specifically, Complainant states that she received the Notice on July 18, 2014. Complainant further argues that the fifteenth calendar day from the receipt of the Notice was August 2, 2014, which was a Saturday, and that the first business day after the original deadline was Monday, August 4, 2014. Moreover, Complainant argues that the Agency erred in dismissing the complaint for failure to state a claim "because the comments by [EEO Counselor] had a chilling effect on Appellant." ANALYSIS AND FINDINGS Untimely filing The regulation set forth at 29 C.F.R. § 1614.106(b) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so. The record discloses that Complainant received the Notice on August 4, 2014. Fifteen days from that date was Saturday, August 2, 2014. Complainant filed her formal complaint on Monday, August 4, 2014, which is the first business day following the weekend. 29 C.F.R. § 1614.604 states that if the last day of a filing period falls on a Saturday, Sunday, or federal holiday, the filing period will be extended to include the next business day. As such, we find that Complainant timely filed her formal complaint on August 4, 2014. Failure to state a claim The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any 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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). In finding Complainant was not aggrieved, the Agency relied on the fact that the EEO Officer at issue was not in Complainant's chain of command and did not work in the EEO office processing her original complaint of discrimination. However, the anti-retaliation provisions of the employment discrimination statutes seek to prevent an employer from interfering with an employee's efforts to secure or advance enforcement of the statutes' basic guarantees, and are not limited to actions affecting employment terms and conditions. Burlington Northern & Santa Fe Railroad. Co. v. White, 548 U. S. 53, 126 S. Ct. 2405 (2006). To state a viable claim of retaliation, complainant must allege that: 1) s/he was subjected to an action which a reasonable employee would have found materially adverse, and 2) the action could dissuade a reasonable employee from making or supporting a charge of discrimination. Id. While trivial harms would not satisfy the initial prong of this inquiry, the significance of the act of alleged retaliation will often depend upon the particular circumstances. See also EEOC Compliance Manual, No. 915.003 (May 20, 1998) (any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity states a claim). We find that the Agency improperly dismissed the instant complaint on alternative grounds of failure to state a claim. We find that Complainant has made sufficient allegations that the Agency's actions created a "chilling effect" on her and other employees' pursuit of the EEO complaint process to state a cognizable claim of unlawful retaliation. The Agency final decision dismissing 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 claim in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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 4, 2015 __________________ Date 2 0120143216 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120143216 7 0120143216