Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. Appeal No. 0120151407 Agency No. 140025300405 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated February 4, 2015, 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 Machinist, WG-3414-10, in Code 32220, at the Agency's Naval Undersea Warfare Center (NUWC) Division in Keyport, Washington. On November 25, 2014, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On January 5, 2015, Complainant filed the instant formal complaint, claiming that the Agency subjected her to discrimination when: 1. Based on sex and reprisal, Complainant was subjected to discriminatory harassment resulting in a hostile work environment when: a. in 2010/2011, Complainant's Branch Head threatened Complainant by saying, "Just wait till you need something from me," and later the same day he threatened he had checked with the union to see if he could write Complainant up for insubordination; b. in November 2007, Complainant was transferred from Code 3223 to Code 3222; and, c. on 26 July 2007, Complainant was not verbally notified by her Supervisor of a meeting her Branch Head had scheduled to discuss her EEO issues. 2. Based on sex Complainant was subjected to discriminatory harassment resulting in a hostile work environment when: a. on an unspecified date at the end of 2006, the machine shop Lead watched everything Complainant was doing on a job, and Complainant was directed by both the Lead and her Supervisor that if she had any questions or needed any help she was to only ask the Lead; b. in February 2006, Complainant's Supervisor assigned her to go to Building 98 to do non-machinist work of taking components out of torpedo shells and taking the sections of shell apart; c. on an unspecified date, an employee in Building 233 threw a shop order at Complainant and while she was looking at the shop order, he said, "Can you read?" When Complainant told her Supervisor about this incident he defended the actions of the employee; d. in 2006, Complainant was denied a rotation opportunity in the Planning Department; e. in 2006, upon completion of Complainant's apprenticeship, she was not promoted to a WG-11 as outlined in the Machinist Apprentice Program guidance; f. on unspecified dates between 2004 and 2006, Complainant was tasked with engraving, working on cables, and doing procurement without being given an assessment or doing an accretion of duties; g. sometime between 2002 and 2004, Complainant's Supervisor, after telling everyone at a safety meeting that they are to take the top job packet and complete that task, sifted through job packets to find a job for Complainant to do instead of having her take the top job packet; h. during Complainant's Machinist Apprenticeship (2002-2006), she was not provided adequate on the job training; i. during Complainant's Machinist Apprenticeship (2002-2006), she was not provided a mentor; and, j. on several occasions during Complainant's Machinist Apprenticeship (2002-2006), Toolmakers would not answer her questions or help her. 3. Based on sex and reprisal (contacting the EEO Office in fall 2007), Complainant was subjected to discriminatory harassment resulting in a hostile work environment when: a. on 27 October 2014, Complainant was told by her first and second level Supervisors that her position grade level would be downgraded from a WG-10 to a GS-09; b. every year for the last six to seven years during Complainant's performance evaluation, she objected to signing the evaluation indicating her position description was correct however, she was directed by her Supervisor to sign anyway; and, c. in April 2014, the Human Resources Office denied Complainant's request for her training and journeyman Machinist certification records. On February 4, 2015, the Agency issued a final decision dismissing claims 1 and 2 on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency stated that Complainant did not contact the EEO office until November 25, 2014. It noted that Complainant had previously contacted the EEO office in the fall of 2007, indicating that she had an awareness of the EEO process and time frames. The Agency noted that because this is a hostile work environment claim, and at least one of the incidents is within the regulatory time frames, it was possible for there to be a potential toll in time. However, the Agency determined that because the majority of management officials involved in claims 1 and 2 were no longer with the Agency, and of those that were, Complainant was no longer under their supervision, the incidents had no causal connection. The Agency dismissed claim 3 for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1), finding that Complainant had not demonstrated that she was aggrieved. The Agency stated that Complainant's position had not been downgraded, at least at the time of the final decision. The Agency stated that Complainant had not provided that signing off on the evaluations had any impact on her work, or the outcome of her performance reviews. The Agency also noted that the Human Resources Office had informed Complainant that the records she requested were no longer maintained and therefore not available to her. The instant appeal followed. On appeal, Complainant details the discrepancies she found in the Agency's decision, and explains how the events are connected, despite spanning several years. Complainant states that since 2002, when she was a Machinist Apprentice, she has been denied opportunities to participate in the equivalent trainings of her male counterparts. Complainant states that she had also expressed interest in a variety of rotational assignments, but that she was also denied those opportunities. Complainant contends that of the training she did receive, it was provided in a hostile work environment. Complainant acknowledges that in 2007, she contacted the Agency's EEO office to report an EEO issue she was having. Complainant asserts, however, that when she met with the EEO Counselor on that occasion, she was not informed of any time limits and was not provided with any avenues to file a claim, and she was not informed of the complaint process. Complainant states that EEO Counselor only told her she would try to take care of the matter brought to her attention. . Complainant also states that she is currently still working under the same supervision in claim 1, and contends that all the incidents are related or resulted from one another. In her appeal, and in her pre-complaint documents, Complainant notes that she was not initially aware that what was occurring "was not right." ANALYSIS AND FINDINGS The Agency fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment by dismissing the complaint for failure to state a claim and untimely EEO Counselor contact. A fair reading of her formal complaint, Complainant claimed that she was subjected to a series of related incidents of harassment from 2002 through present. Claims 1 - 2 (untimely EEO Counselor contact) The Agency improperly dismissed claims 1 - 2 on the grounds of untimely EEO Counselor contact. The record reflects that Complainant initiated EEO Counselor contact on September 12, 2014. The Commission has held that "[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence." EEOC Compliance Manual, Section 2, Threshold Issues at 2 - 75 (revised July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)). The record reflects that there is a justiciable claim (claim 3a referenced below), which is part of Complainant's hostile work environment claim, and which occurred within the 45-day time period preceding Complainant's November 2014 EEO Counselor contact. Because a fair reading of the record reflects that the matters identified in claims 1-2 are part of an overall harassment claim, we find that the Agency improperly dismissed these claims on the grounds of untimely EEO Counselor contact. Claim 3 (failure to state a claim) The Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment by dismissing claims 3 for failure to state a claim. We find that a fair reading of the subject claims reflects that Complainant has alleged a justiciable harassment claim. We note for example, that Complainant asserts that she has been targeted for treatment in a manner separate from other employees. Specifically, Complainant states that she is treated differently from her male counterparts, including, but not limited to denial of rotational assignments, lack of training opportunities and the manner in which jobs are assigned. Complainant has detailed the occurrences in her pre-complaint and formal complaint documents. These matters, taken together, state an actionable claim of harassment. By alleging a pattern of harassment, Complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993). Accordingly, we REVERSE the Agency's final decision dismissing Complainant's formal complaint, defined herein as a harassment claim, 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 claim (harassment/hostile work environment) 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 July 30, 2015 __________________ Date 2 0120151407 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120151407