U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Pamela L.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency. Appeal No. 0120150664 Agency No. ARIMCOMHQ14JUL02442 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated October 17, 2014, dismissing her complaint of unlawful employment discrimination alleging violations 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 At the time of events giving rise to this complaint, Complainant worked as a Chief of EEO at the Agency's European Region. On September 2, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Black), sex (female), disability, and reprisal for prior protected EEO activity when she was subjected to ongoing harassment. In support of her claim, she alleged that the following events occurred: 1. on or about December 2012 to August 21, 2014, the Europe Region Director and Chief of Staff did not support Complainant in the implementation of her EEO duties; 2. on August 22, 2014, the Europe Region Chief of Staff sent one of Complainant's duty assignments to the G-1 Deputy telling him he was the lead on the document request; 3. on or about August 21, 2014, Deputies to Garrison Commanders (DGC) told garrison EEO officers "not to listen" to Complainant and that she did not want a "new EEO employee" in the USAG-Bavaria EEO office; 4. on August 21, 2014 the DGC, USAG-Bavaria, during the Command/Staff meeting, embarrassed Complainant and her staff by thanking the EEO staffs at USAG-Vicenza and USAG-Ansbach for providing EEO support and EEO training to USAG-Bavaria employees; 5. on August 18, 2014 the DGC, USAG-Bavaria, told the G-1 Deputy to coordinate a training action that was one of Complainant's duty assignments; 6. on August 18, 2014, the Europe Region Chief of Staff, without prior notice to Complainant, pointed to a reserved parking space and said, "Your parking space."; 7. on August 14, 2014, the USAG-Ansbach EEO officer informed Complainant that her DGC instructed her to contact the DGC, USAG-Bavaria to offer EEO support; 8. on August 11, 2014, Complainant learned that the Command Climate Survey was returned to the EEO office after it had been given to the PAO Chief in July 2014; 9. on July 28, 2014, Complainant sent an e-mail to the DGC, USAG-Bavaria offering to provide EEO training to the USAG-Bavaria workforce; 10. on July 30, 2014, the IG interviewing Complainant asked inappropriate questions; and 11. on July 6, 2014, the DGC, USAG-Bavaria, sent Complainant an e-mail "admonishing and accusing" Complainant of discriminating against Local National (LN) employees. The Agency dismissed events 1, 2, 5, and 8 pursuant to 29 C.F.R. § 1614.107(a)(1) for stating the same claim in a prior EEO complaint. The Agency noted that Complainant filed a prior EEO complaint alleging harassment between October 2011 and November 2013. The Agency indicated that the matter was before an Equal Employment Opportunity Commission Administrative Judge (AJ). As for events 3, 4, 6, 7, 9, 10, and 11, the Agency dismissed these claims, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The Agency indicated that these events were not sufficiently severe or pervasive to state a claim of harassment. Therefore, the Agency dismissed the complaint as a whole. Complainant appealed asking that the Commission reverse the Agency's dismissal. The Agency asked that we affirm their final decision. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. The Agency provided a copy of Complainant's prior EEO complaint which did, in fact, allege harassment and listed events that occurred between October 2011 and November 2013, in support of that claim of harassment. However, a review of the specific events listed by Complainant in that prior complaint reveals that none of them are the same events listed by Complainant in events 1, 2, 5, and 8, which are alleged to have occurred after November 2013. We note that the events raised in her prior EEO complaint involved the Agency's failure to provide her with reasonable accommodation and a performance award. As such, we find that Complainant has not alleged the same claim as her prior EEO complaint. Therefore, we find that the Agency's dismissal was not appropriate. As to the Agency's dismissal of events 3, 4, 6, 7, 9, 10, and 11, the Agency found that only these events failed to state a claim. Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If Complainant cannot establish that she is aggrieved, the Agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). In her complaint, Complainant alleged a series of events listed as events 1 - 11. Specifically, Complainant alleged that she was subjected to harassment which created a hostile work environment. Instead of treating these events as incidents of the claim of harassment, however, the Agency looked at them individually. Thus, we find that the Agency acted improperly by treating matters raised in Complainant's complaint in a piecemeal manner. See Meaney v. Dep't of the Treasury, EEOC Request No. 05940169 (Nov. 3, 1994) (an agency should not ignore the "pattern aspect" of a complainant's claims and define the issues in a piecemeal manner where an analogous theme unites the matter complained of). Consequently, when Complainant's claims are viewed in the context of Complainant's complaint of harassment, they state a claim and the Agency's dismissal of those claims for failure to state a claim was improper. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below. ORDER (E0610) The Agency is ordered to process the remanded claims 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 (M0815) 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, 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 December 8, 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 0120150664 2 0120150664