U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Giselle W.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force (National Guard Bureau), Agency. Appeal No. 0120150467 Agency No. 413414008 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated September 17, 2014, 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 During the period at issue, Complainant worked as an IT Specialist at the Agency's Air National Guard in Join Base Andrews, Maryland. On May 22, 2014, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On July 8, 2014, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected her to discrimination on the bases of race and disability when: a. on March 28, 2014, she received a Disposition letter stating that she was not selected for the position of IT Project Manager, GS-2210-13, announced under Job Announcement Number 41-ANG-1033013-037320-TC; b. the Cyber Policy Division Chief (Chief) denied her request for reasonable accommodation to telework form home after she submitted a note from her doctor, dated May 8, 2014, requesting that Complainant be allowed to telework two days per week for 3 months (May-August 2014). Complainant further alleged that the Chief then instructed her to report to work or use leave until she provided additional medical documentation; c. she completed several major IT Security projects but was never nominated for a Civilian of the Quarter Awards such as the Voice Switch Server, 2GWLAN, Fairchild, CAIRS, Converged Backbone Network, and ANG SBU Enclave Reaccreditation Project for the 4th quarter 2013 (July 2013 through September 2013) and the 1st and 2nd quarter 2014 (October 2014 through March 2014); and d. the Chief delayed processing of her request to purchase an ergonomic chair to accommodate her back injury and as a result caused further injury to her back. Complainant alleged that she submitted the request in April 2013 and has not received the chair as of the filing of the instant complaint. In its September 17, 2014 final decision, the Agency dismissed claims a and c on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on May 22, 2014, which it found to be beyond the 45-day limitation period. Further, the Agency dismissed claims b and d 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. ANALYSIS AND FINDINGS Claims b and d (failure to state a claim) The Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment by dismissing claims b and d for failure to state a claim. A fair reading of her formal complaint, Complainant claimed that she was subjected to a series of related incidents of harassment from April 2013 through present. In the attachment to the instant formal complaint, Complainant states that she was discriminated against when she was not selected for the IT Project Manager "that was given to a white female." Complainant further states that the Chief's decision to deny her telework request "caused me to come into the office while in pain and bleeding excessively. This set back my healing process, causing additional pain." Further, Complainant states that the Agency's failure to provide her an ergonomic chair "for 15 months. Sitting in a regular chair has caused enormous pain and April 2014, my back went out, requiring a surgical procedure. I'm still in pain and have to take narcotic pain meds and muscle relaxers. As of 8 Jul 2014, I do not have an ergonomic chair. [Chief] did not see my disability as a priority and chose to assist other A6 personnel with their request; meanwhile ignoring mine. His lack of concern was due to my race and disability." As a remedy, Complainant requested "monetary damages for a) the pain I suffered from sitting in a non-ergonomic chair from April 2013 and b) not given the fair opportunity to interview for the A6 GS 13 position. This would have allowed me to increase my salary and civilian rank." 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). Claims a and c (untimely EEO Counselor contact) The Agency also improperly dismissed claims a and c on the grounds of untimely EEO Counselor contact. The record reflects that Complainant initiated EEO Counselor contact on May 22, 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 various incidents comprising Complainant's hostile work environment claim occurred within the 45-day time period preceding Complainant's May 22, 2014 EEO Counselor contact, as discussed above. Because a fair reading of the record reflects that the matter identified in claims a and c is part of that harassment claim, we find that the Agency improperly dismissed these claims on the grounds of untimely EEO Counselor contact. Moreover, we note that the instant formal complaint can be reasonably construed as a denial of reasonable accommodation. EEOC Compliance Manual, Section 2, "Threshold Issues," EEOC Notice 915.003, at 2-73 (July 21, 2005), provides that "because an employer as an ongoing obligation, to provide a reasonable accommodation, failure to provide such an accommodation constitutes a violation each time the employee needs it." See e.g. Peacock v. USPS, EEOC Appeal No. 0120082372 (July 31, 2008). Accordingly, we REVERSE the Agency's dismissal of the formal complaint for untimely EEO Counselor contact and 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 (E0610) The Agency is ordered to process the remanded claims (harassment/hostile work environment and violation of Rehabilitation Act) 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 (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 April 7, 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 0120150467 2 0120150467