U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Isabelle G.,1 Complainant, v. Betty J. Sapp, Director, National Reconnaissance Office, Agency. Appeal No. 0120142354 Agency No. NR-CI-14-003 DECISION On June 9, 2014, Complainant filed a timely appeal with this Commission from the May 12, 2014 Agency decision dismissing her 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND Complainant worked as a Mission Support Administrator for the Agency as a grade level, GS-10 Administrator in Division A under the Directorate Office. Her first line supervisor was RMO3 (Lead Administrative Assistant) and her second level manager was RMO2. RMO1 was the Directorate's Office Director. In her complaint, she alleged that the Agency subjected her to discrimination on the bases of race (African-American) and disability (physical) when: 1. In April 2013, RMO1 assigned Complainant to Division A instead of to the Front Office of the Directorate's Office. 2. In late fall 2013, RMO1 did not extend appreciation or public recognition to Complainant for developing and implementing a Directorate Office centralized leave calendar. 3. On January 15, 2014, RMO2 confronted Complainant regarding performance matters and pointed her finger at Complainant's face. 4. On January 19, 2014, Complainant received no birthday celebration when the birthdays of others were usually celebrated. 5. On February 21, 2014, after receiving guidance from Complainant regarding the time and attendance policy, RMO1 dismissed Complainant's guidance by requesting additional assistance from Complainant's colleague. 6. RMO2 verbally taunted Complainant by seeking her out on several occasions and saying, "Hi, [Complainant]" very loudly. 7. On March 24, 2014, RMO1 scrutinized Complainant's Medical Leave Bank (MLB) document availing himself to Complainant's specific medical conditions when in the past RMO1 only reviewed and signed the signature page of the MLB document. 8. On March 28, 2014, RMO2 assigned Complainant menial tasks usually assigned to another employee. 9. On March 28, 2014, RMO2 assigned tasks to Complainant without providing the resources to accomplish those tasks. 10. Directorate Office employees have subjected Complainant to ongoing general isolation. The Agency dismissed claims 1 and 2 pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely contact with an EEO Counselor. The Agency found that Complainant initiated contact on February 27, 2014 and was therefore beyond the requisite 45-day limitation period. The Agency dismissed claims 3-10 for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a) (1) and dismissed claims 1-2, alternatively, on the same ground. ISSUES Was the Agency's dismissal of the complaint on the grounds of untimely EEO Counselor contact and failure to state a claim proper? CONTENTIONS ON APPEAL Complainant maintains that she was subjected to the incidents of alleged harassment that caused her stress. The Agency essentially asserts that its dismissal should be affirmed.2 ANALYSIS AND FINDINGS Upon review, the Commission finds that the Agency's dismissal of the complaint for failure to state a claim was improper. During informal counseling, Complainant alleged that she was being harassed by the Office Director and the Lead Special Assistant based on her race and disability beginning shortly after she reported for duty in spring 2013. In her complaint, she specifically alleged that she was being subjected to workplace harassment. "A complaint should not be dismissed for failure to state a claim unless it appears that a complainant cannot prove a set of facts in support of the claim which would entitle the complainant to relief." Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Because the complaint states a claim of harassment when viewed in its entirety, the Agency improperly dismissed the complaint.3 Regarding the timeliness of EEO Counselor contact, the Commission has held that where, as here, "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." EEOC Compliance Manual, 2-IV.C.1.b., 2-IV.C. (rev. July 21, 2005) referencing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002); see also Enforcement Guidance on Harris v. Forklift Sys. Inc. (1994), EEOC Notice No. 915.002 (Mar. 8, 1994). Per our regulations, a complainant may include any claims that are like and related which have not already been raised before an EEO Counselor as part of the harassment allegation. 29 C.F.R. § 1614.107(a)(2); National Railroad Passenger Corp., supra. CONCLUSION The Agency's dismissal of the claim on the grounds of untimely EEO Counselor contact and failure to state a claim is REVERSED. This matter is REMANDED to the Agency for further processing. ORDER The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. 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 (M0416) 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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (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 Complainant's 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 12-2-16 __________________ 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 The Agency asserts for the first time on appeal that the complaint should be dismissed as moot because Complainant's 21-month assignment with the Agency ended in January 2015 when she returned to another agency. Mootness was not identified as a ground for dismissal in the Agency's dismissal. Therefore, Complainant did not address this ground in her appeal. Moreover, what the Agency appears to be attempting is to issue another decision on the same complaint while the matter is pending before the Commission and without any input from Complainant. 3 The Commission notes that in its dismissal, the Agency improperly addressed the merits of claims of the complaint without the benefit of an investigation as required by the regulations. The Commission also notes that in its dismissal, the Agency also discussed resolution and settlement matters which occurred during informal counseling and we remind the Agency about the need for confidentiality in such proceedings. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 3 § II.A.3 (Aug. 5, 2015). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120142354 2 0120142354