U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Von E.,1 Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Highway Administration), Agency. Appeal No. 0120152502 Agency No. 2015-26257-FHWA-01 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated June 30, 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 Safety and Operations Engineer, GS-12, at the Agency's Massachusetts Division in Cambridge, Massachusetts. On June 12, 2015, Complainant filed the instant formal complaint. Therein, Complainant alleged that he was subjected to harassment and a hostile work environment on the bases of race and in reprisal for prior EEO activity when: on April 2, 2015, the Assistant Division Administrator approached him in the hallway and asked him to explain what he had just approved in reference to the Highway Safety Improvement Program (HSIP) Fund. On June 30, 2015, the Agency issued a final decision dismissing the formal complaint for stating the same claim that was raised in a prior EEO complaint, pursuant to 29 C.F.R. § 1614.107(a)(1). Specifically, the Agency found that the instant formal complaint raises the same matter as raised in Agency Case No. 2014-25774-FHWA-01 which is pending a hearing before an Administrative Judge. The Agency also dismissed the complaint on the alternative grounds of failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1), finding that Complainant was not aggrieved. Complainant, on appeal, argues that the Agency erred dismissing his complaint because he is subjected to ongoing harassment, and that the instant complaint is similar to his other complaint which is pending a hearing before an EEOC Administrative Judge. Complainant further states that the Agency "presumes, without having conducted an investigation, that [Complainant] was not harmed by a public reprimand, in front of other employees; and that the alleged incident at issue did not involve extremely embarrassment and humiliation, as a result of the public reprimand." The instant appeal followed. ANALYSIS AND FINDINGS Same claims EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides for the dismissal of a complaint that states the same claims that is pending before or has been decided by the Commission or the Agency. The Agency improperly dismissed the instant complaint for stating that it is identical to the claims in his prior complaint (Agency No. 2014-25774-FHWA-01). The record, however, does not contain a copy of Complainant's July 7, 2014 complaint as identified by the Agency in its final decision. We cannot determine whether the instant complaint is identical to the claims in unspecified prior complaints. Clearly, it is the burden of the Agency to have evidence or proof in support of its final decision. See Marshall v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991). Failure to state a claim The Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment by dismissing the instant complaint for failure to state a claim. A fair reading of the complaint, Complainant claimed that he was subjected to a series of related incidents of harassment from April 2015 through present. As a remedy, Complainant requested that the harassment ceased, retroactive promotion to the GS-13 level, attorney's fees and compensatory damages and attorney's fees. 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). Moreover, we find that Complainant's prior complaint (Agency No. 2014-25774-FHWA-01) though not in the record, appears to relate to the broader claim of ongoing retaliatory harassment. When viewed in the context of Complainant's larger complaint of harassment, the events state a claim and the Agency's dismissal was improper. Therefore, the specific incidents presented in this complaint should be consolidated with the earlier events remanded for processing to the extent practicable. Accordingly, we REVERSE the dismissal of the instant complaint for stating the same claim and dismissal of the formal complaint in its entirety for failure to state a claim, defined herein as a harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER The Agency is ordered to take the following action: The Agency is ordered to process the remanded claims (harassment/hostile work environment) in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall, to the extent practicable, consolidate the instant formal complaint with Complainant's other harassment complaints for continued processing (Agency No. 2014-25774-FHWA-01). 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations December 4, 2015 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120152502 2 0120152502 6 0120152502