U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Murray C.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120151759 Agency No. 200H06322015101417 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated April 8, 2015, dismissing his complaint of unlawful employment discrimination alleging a violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Nursing Assistant at the Agency's Medical Center in Northport, New York. On December 11, 20142, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. On February 10, 2015, Complainant filed a formal EEO complaint alleging that the Agency subjected him to harassment sufficient to create a hostile work environment on the bases of race (Caucasian) and/or retaliation for prior protected EEO activity. In support of his claim, Complainant offered the following allegations: 1. since September 2013, Complainant has been denied payment for overtime worked; 2. from July 2014 through August 2014, Complainant was required to perform the work of his coworkers; 3. in August 2014, Complainant was issued a proposed seven (7) day suspension; and, 4. on December 31, 2014, the Nurse Manager issued Complainant a memorandum regarding "inappropriateness." On February 15, 2015, Complainant submitted documentation regarding his claim. However the handwritten statement was difficult to read. The statements were also not clear as to whether Complainant was identifying new claims, or expanding upon on already discussed matters. In letters dated February 27, 2014, and March 4, 2015, and in telephone messages left on March 10, 2015, and March 13, 2015, the Agency's EEO Case Manager attempted to obtain clarifying information related to the claims. On March 25, 2015, Complainant responded to the requests. However, Complainant's handwritten response was difficult to read. On April 8, 2015, the Agency issued its final decision. The Agency determined that any discrete events that Complainant was trying to bring into this complaint that occurred prior to October 27, 2014, were dismissed pursuant to 29 C.F.R. 1614.107(a)(2), for untimely EEO counselor contact. The Agency determined that Complainant had not provided sufficient reasoning for extending the 45 day time frame. As such, the Agency noted that it would not include allegations 1 - 3 in Complainant's harassment claim. In regards to allegation 4, the Agency determined that the incident, without more, was not sufficiently severe or pervasive to state a viable claim of discriminatory harassment. The Agency determined that the issuance of the memorandum did not rise to the level of severity or pervasiveness required to state an acceptable claim of harassment. The Agency dismissed the allegation, pursuant to 29 C.F.R. 1614.107(a)(1), for failure to state a claim. The Agency also noted that while Complainant had previously filed several dozen EEO complaints, he had not identified any specific prior EEO activity as a basis for the reprisal. The Agency determined that the record did not support the allegation that the Agency's action would prevent or deter a reasonable person from participating in the EEO process. Alternatively, the Agency also stated that it was dismissing the formal complaint under 29 C.F.R. 2614.107(7) for failure to cooperate, stating that Complainant failed to provide the specific, relevant and legible information resulting in insufficient information in the record, which made it impossible to proceed with the EEO complaint process. The instant appeal followed. ANALYSIS AND FINDINGS Harassment: Untimely EEO Counselor Contact/Failure to State a Claim As a preliminary matter, it appears that the Agency fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment by dismissing allegations 1 through 3 for untimely EEO counselor contact. A fair reading of the formal complaint reflects that Complainant is claiming that he was subjected to continuing harassment by his manager, that included all four allegations. 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 at least one of Complainant's allegations (allegation 4) comprising the instant harassment/hostile work environment claim occurred within the 45-day period preceding Complainant's initial EEO contact on December 11, 2014. Allegations 1-3 are sufficiently connected to allegation 4 to be part of Complainant's overall claim of on-going harassment. See Bock v. Department of Homeland Security, EEOC Request No. 0120110975 (December 16, 2011). By alleging a pattern of harassment and retaliation, Complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. United States Postal Service, EEOC Request No. 05930303 (November 12, 1993); Bock v. Department of Homeland Security, EEOC Request No. 0120110975 (December. 16, 2011); Bandaries v. United States Postal Service, EEOC Request No. 0120114272 (March 1, 2012). Therefore, the Agency erred in dismissing the complaint for failure to state a claim or for untimely EEO counseling. Failure to Cooperate Regarding the Agency's dismissal for failure to cooperate, the Commission has held that as a general rule, an agency should not dismiss a complaint when it has sufficient information on which to base an adjudication. See Ross v. United States Postal Service, EEOC Request No. 05900693 (August 17, 1990); See also Brinson v. United States Postal Service, EEOC Request No. 05900193 (April 12, 1990). It is only in cases where the complainant has engaged in delay or contumacious conduct and the record is insufficient to permit adjudication that the Commission has allowed a complaint to be dismissed for failure to cooperate. See Card v. United States Postal Service, EEOC Request No. 05970095 (April 23, 1998); See also Kroeten v. United States Postal Service, EEOC Request No. 05940451 (December 22, 1994). Our review of the record does not reflect contumacious conduct meriting dismissal pursuant to 29 C.F.R. § 1614.107(7). The record appears to have sufficient documentation to permit continued adjudication of this matter. Specifically, the record contains correspondence from Complainant, a counselor's report and other documents regarding his claims. We note that while some of the handwritten statements might be difficult to read, there is no indication that Complainant engaged in contumacious conduct. Therefore, under these circumstances, we find that the Agency's dismissal of Complainant's complaint for failure to cooperate was improper. Accordingly, we REVERSE the Agency's final decision dismissing Complainant's formal complaint, defined herein as a harassment/hostile work environment 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 claim (ongoing harassment/hostile work environment) 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, Director Office of Federal Operations May 17, 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 Complainant contacted Office of Resolution Management (ORM) via a letter. Based on the postmark date of the letter, the Agency determined that the date of contact was December 11, 2014. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120151759 2 0120151759