U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Helen G.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 0120142819 Hearing No. 451-2013-00187X Agency No. HSCBP006202011 DECISION On July 29, 2014, Complainant filed an appeal from the Agency's July 3, 2014 final order concerning an equal employment opportunity (EEO) complaint claiming 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. The Equal Employment Opportunity Commission (EEOC or Commission) deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.403. BACKGROUND During the period at issue, Complainant worked as a Supervisory Border Patrol Agent at the Agency's Brownsville Station, Rio Grande Valley Sector facility in Brownsville, Texas. On February 9, 2011, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On April 14, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to an ongoing discriminatory hostile work environment on the bases of sex (female) and in reprisal for prior protected activity as evidenced by the following incidents: 1. the Special Operation Supervisor (SOS) denied Complainant's request to postpone her attendance at Supervisory Leader Training in Dallas, Texas, and, instead, required her to attend in February 2010; 2. on or about September 10, 2010, the SOS accused Complainant of independently cancelling her enrollment in Technical Training Course (TTC) sessions scheduled for October 19 through October 28, 2010, and April 19 through April 28, 2011, in Artesia, New Mexico; 3. on or about July 23, 2010, the SOS served Complainant with written counseling in the form of a Record of Discussion; 4. the SOS failed to select Complainant for a detail as the Administrative Supervisor; 5. in October 2010, the SOS counseled Complainant regarding instructions she had provided to a Border Patrol Agency assigned to the Prosecutions Office, and banned her from going to the Prosecutions Unit in the future; 6. in December 2010, the Assistant Agency in Charge chastised Complainant in a hostile tone regarding an inquiry she had made to Headquarters relating to uniform and grooming standards; 7. the SOS forced Complainant to "write up" a Border Patrol Agent, even though she disagreed that the "write up" was appropriate; 8. on February 9, 2011, the SOS accused Complainant of wearing shoes of a color that did not comply with footwear requirements; and, 9. on or about March 9, 2011, the SOS informed the Patrol Agent in Charge that she did not meet expectations as a supervisor. On May 19, 2011, Complainant filed an amendment alleging further incidents in support of her hostile work environment claim: 10. on May 12, 2011, after making references to the EEO process and veiled references to Complainant's EEO complaint, the newly appointed Patrol Agent in Charge attempted to solicit negative information about her from subordinate employees during a private meeting with them which Complainant had been expressly excluded; and, 11. on May 12, 2011, the Patrol Agent in Charge held a private meeting with Complainant and two other managers during which he commented about her gender and made statements to her intended to anger and insult her. On July 11, 2011, Complainant filed another amendment adding additional incidents to her hostile work environment claim: 12. on May 18, 2011, the SOS instructed Complainant to sit at supervisors' table, to sit straight, to look attentive, and to project her voice during the morning muster meetings; 13. on May 19, 2011, the Patrol Agent in Charge (PAIC) attempted to solicit information about Complainant's unit from a subordinate employee of hers; 14. on May 19, 2011, the PAIC held a private meeting with Complainant during which he urged her to identify self-perceived weaknesses, and to express her appreciation for the mentoring she was receiving; 15. on June 3, 2011, during a supervisory meeting, the PAIC intentionally made subtle references to performance topics he had discussed in private with Complainant on a prior occasion, and, in a veiled reference to Complainant's EEO complaint, the PAIC indicated his predisposition to defend his supervisory performance expectations in any administrative forum; 16. on June 7, 2011, Complainant learned that she had not been included in a tour of a new bus terminal, for which her unit has jurisdiction for patrolling; 17. on June 8, 2011, a SOS informed Complainant that she should be prepared, if ordered, to go on a 45-day temporary duty assignment (TDY) to Arizona, and in the event that her TDY assignment coincided with scheduled annual leave, Complainant would have to demonstrate unavailability for the TDY by submitting proof of travel and/or accommodations reservations that pre-dated her TDY notification; 18. on June 9, a SOS, APAIC and PAIC verbally confronted Complainant about her memorandum to higher-headquarters by suggesting she was not a team player, chastising her for having breached the chain-of-command by contacting a ACPA 19. directly to discuss her concerns; and urging her to retract the memorandum; and, 20. June 14, 2011, a SOS ignored Complainant when he interrupted Complainant's conversation with a subordinate BPA greeted the subordinate and departed without acknowledging her; Finally, on December 22, 2011, Complainant filed an amendment, again adding additional incidents to her hostile work environment claim: 21. on October 19, 2011, the SOS accused Complainant of instigating a Border Patrol Agency's Collective Bargaining Agreement grievance relating to management's alleged failure to furnish cold weather uniform apparel to members of the Brownsville Bike Patrol unit; 22. on November 23, 2011, approximately one month after her fellow supervisors received their annual Performance Work Plans (PWP), the SOS issued Complainant's annual PWP that contained unfavorable comments and during performance counseling sessions held on November 23 and 29, 2011, the SOS informed Complainant that he did not have to substantiate or document his negative assessments of her performance; and, 23. on December 16, 2011, Complainant was not invited to participate in a holiday luncheon at work. On April 8, 2012, at the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Over Complainant's objections, the AJ assigned to the case issued a decision without a hearing on May 28, 2014. In reaching this decision, the AJ determined that the "material facts" relevant to the issues in this case were accepted as presented by the Agency in Agency's Motion for a Decision Without a Hearing, and as presented in Complainant's response.2 The AJ determined the following in regards to the various claims: Allegations 1 and 3-5 The AJ determined that allegation 1 should be dismissed for untimely EEO Counselor contact. The AJ determined that allegation 1 occurred a year prior to Complainant seeking EEO Counselor contact. The AJ acknowledged Complainant's argument that allegation 1 should be included in her overall hostile work environment claim. However, the AJ determined that even if allegation 1 was considered timely, the record was "insufficient to show that when Complainant's request to postpone mandatory supervisory training was denied, she was treated less favorably than other similarly situated individuals outside her protected category or that the action complained of was severe or pervasive so as to rise to the level of a hostile work environment." The AJ determined that allegations of discrimination that center on discipline or potential discipline, as was the case in allegations 3 - 5, are discrete acts that require timely initiation of contact with an EEO counselor despite any hostile work environment claims. The AJ determined that allegations concerning such discrete acts, rather than inappropriate comments and behavior, should be reviewed separately from a claim of hostile work environment. As such, the AJ determined that allegations 3 - 5 should also be dismissed on the grounds of untimely EEO Counselor contact. Allegations 2 and 6 - 23 Regarding allegation 2, the AJ stated that the TTC is a mandated course for supervisors, and that Complainant did not cancel the course outright, but cancelled one as she was scheduled for two iterations of the same course. The AJ found that, while the SOS had initially wanted to write Complainant up for a breach of the chain of command, Complainant was not written up. The AJ determined that as there were no concrete Agency actions that rendered Complainant aggrieved, therein, the AJ determined that allegation 2 failed to state a claim. The AJ also dismissed allegations 6 - 23 for failure to state a claim. The AJ determined that there was insufficient evidence to show that Complainant was treated less favorably than other similarly situated individuals outside her protected class. Additionally, the AJ determined that the record was insufficient to show that the actions complained of met the definition of severe or pervasive and therefore, did not constitute a hostile work environment. The AJ determined that that the record was devoid of evidence showing that based on any of the above actions, Complainant was subjected to any form of discipline, or that the actions rose to a level of hostile work environment. The AJ concluded, in summary fashion, that the "preponderant evidence does not establish that Complainant was subjected to discrimination as alleged." On July 29, 2014, the Agency issued a final order finding that the AJ's issuance of a decision without a hearing was procedurally appropriate. The instant appeal followed. Complainant does not raise any new contentions on appeal. ANALYSIS AND FINDINGS As an initial matter, we determine that the essence of the AJ's decision in this matter was to dismiss all of Complainant's allegations for a variety of procedural reasons using 29 C.F.R. § 1614.107(a). An AJ has this authority under 29 C.F.R. § 1614.109(b). In reaching this conclusion, we acknowledge that, in her analysis, the AJ on occasion addressed in a relatively cursory fashion, the merits of some of the subject claims. We note, for example, that the AJ determined that Complainant did not prove a prima facie case of discrimination regarding some of the allegations. However, despite the AJ's rather brief diversion into a merits-based analysis on some allegations, we find it inescapable that the focus of the AJ's analysis in large part was dedicated to an explicit determination that the subject matters either failed to state a claim, or were untimely raised with an EEO Counselor. Given the breadth of Complainant's 23-claim presentation of alleged incidents of harassment, given the AJ's focus on procedurally disposing the claim, and given a very cursory assessment of some claims on their merits, we find that the AJ's decision must be considered to be a procedural dismissal rather than a decision by summary judgment on the merits of Complainant's overall claim of an ongoing discriminatory and retaliatory hostile work environment. Therefore, our review will focus on the correctness of those procedural dismissal decisions. Failure to State a Claim The AJ dismissed allegations 2 and 6 - 23 for failure to state a claim. We, however, find that the AJ's piecemeal approach to individually dismissing each allegation has resulted in improperly fragmenting Complainant's overall claim into separate parts. The AJ's analysis has resulted in a failure to distinguish between the ongoing hostile work environment claim Complainant is raising and the evidence (her 23 allegations) she offered in support of that claim. This fragmentation has compromised Complainant's ability to present an integrated and coherent claim of an unlawful employment practice for which there is a remedy under federal equal employment statutes. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings 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 the complainant's employment. Thus, not all claims of harassment are actionable. As noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment'." However, a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that Complainant cannot prove a set of facts in support of the claim which would entitle her 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. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997); Miller v. Department of the Treasury, EEOC Request No. 05A10338 (August 15, 2002). Here, we find that by alleging a pattern of ongoing harassment through the 23 related incidents alleged, Complainant has stated a cognizable claim of a discriminatory hostile work environment in asserted violation of Title VII. See Cervantes v. United States Postal Service, EEOC Request No. 05930303 (November 12, 1993). Moreover, we note that Complainant has alleged, in part, that the hostile work environment was the result of retaliatory animus because of her prior EEO activity. The Commission has a broad view of what states a claim of retaliation. 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) she 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. See also EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (August 25, 2016). We conclude she has done so here. Untimely EEO Counselor Contact EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. With regard to the timeliness of Complainant's initial EEO Counselor contact, several of the incidents proffered in support of her harassment claim occurred within the 45-day limitation period (e.g. January 2016 incidents regarding a bonus and RMO1 instructing Complainant's coworker to monitor his behavior). The Supreme Court has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). Applying Morgan, 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). Here, various incidents comprising Complainant's hostile work environment claim occurred within the 45-day time period preceding Complainant's February 9, 2011 EEO counselor contact. Because a fair reading of the record reflects that the other allegations identified are part of an ongoing harassment claim, we find that the AJ improperly dismissed these incidents on the grounds of untimely EEO Counselor contact. With regard to those which can also be considered an untimely discrete act, while they are out of time for processing an separate claims of disparate treatment, they are properly considered as evidence in support of Complainant's overall hostile work environment claim. CONCLUSION The Agency's final order implementing the AJ's dismissal is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER The Agency shall submit to the Hearings Unit of the appropriate EEOC field office the request for a hearing within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. 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. Carlton M. Hadden, Director Office of Federal Operations December 21, 2016 __________________ 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 We note that both the Agency's Motion for a Decision Without a Hearing, and Complainant's Opposition Brief, contain scant information relating to undisputed facts. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 16 0120142819 2 0120142819