U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Isabel F.,1 Complainant, v. Maria Contreras-Sweet, Administrator, Small Business Administration, Agency. Appeal No. 0120151948 Agency No. 02-15-022 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated April 22, 2015, dismissing a formal 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. BACKGROUND During the period at issue, Complainant worked as a Procurement Analyst at the Agency's Office of Government Contracting, Area VI in San Diego, California. On February 2, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On March 6, 2015, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected her to discrimination on the bases of sex and retaliation (filing a prior union grievance) when: 1. on May 14, 2014, she was excluded from a work assignment that was assigned to a less qualified male employee; 2. on July 31, 2014, she became aware of untrue comments written about her performance during the third quarter review; 3. on September 16, 2014, she did not receive a Star (Time off) Award as her male counterparts did for the same project; 4. on October 8, 2014, she requested to receive approval from Headquarters to attend a "Women in Contracting" workshop but then was directed to provide a summary of the event and submit it to all of her counterparts in Area VI; 5. on November 11, 2014, she received a Level 4, "Exceeds Expectations" for her year-end performance rating; 6. on January 28, 2015, she received a less than favorable electronic message in regard to a site survey report she submitted; and 7. on February 11, 2015, she was denied customer service training. In its April 22, 2015 final decision, the Agency dismissed claims 1, 2, 4 and 6 pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim, finding that Complainant was not aggrieved. The Agency found that unless the conduct is severe, a single incident or group of isolated incidents will not be considered discriminatory harassment. Further, the Agency dismissed claims 1 - 5 and 7 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 February 2, 2015, which it found to be beyond the 45-day limitation period. The Agency also dismissed claim 5 pursuant to 29 C.F.R. 1614.107(a)(4) on the grounds that Complainant first elected to file a grievance this matter in a grievance procedure that permits allegations of discrimination. Additionally, the Agency dismissed reprisal as a basis. Specifically, the Agency found that Complainant did not engage in any prior protected EEO activity. The Agency noted that a review of the record reflects that Complainant clearly identified the basis of her complaint as reprisal for filing a prior union grievance, and that Complainant's reprisal basis is not within the purview of the EEO complaint process. The instant appeal followed. ANALYSIS AND FINDINGS As an initial matter, we note that in regard to the dismissal of Complainant's claim of unlawful retaliation, the record is clear that Complainant did not have any prior EEO complaint activity. Complainant asserts that she was retaliated against for filing a prior union grievance. We determine that the Agency properly dismissed reprisal as a basis, and will now address the Agency's disposition of the subject claims, exclusively on the basis of sex. Claims 1, 2, 4, and 6 (failure to state a claim) The Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment by dismissing claims 1, 2, 4, and 6 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 May 2014 through present. Complainant, on appeal, states that she is subjected to ongoing harassment. As a remedy, Complainant requested that the "unfavorable treatment, discrimination, harassment and retaliation by [supervisor] and [Director] to stop. I want [supervisor's] January 28 and February 6, 2015 emails removed from the record and I do not want them used against me in my 2015 performance evaluation and rating. I want an equal opportunity for training and travel related to my job." 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 1 - 5 and 7 (untimely EEO Counselor contact) The Agency also improperly dismissed claims 1 - 5 and 7 on the grounds of untimely EEO Counselor contact. The record reflects that Complainant initiated EEO Counselor contact on February 2, 2015. 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 February 2, 2015 EEO Counselor contact, as discussed above. Because a fair reading of the record reflects that the matter identified in claims 1 - 5 and 7 is part of that harassment claim, we find that the Agency improperly dismissed these claims on the grounds of untimely EEO Counselor contact. Claim 5 (first elected to file a grievance) EEOC Regulation 29 C.F.R. § 1614.301(a) states that when a person is employed by an agency subject to 5 U.S.C. § 7121(d) and is covered by a collective bargaining agreement that permits claims of discrimination to be raised in a negotiated grievance procedure, a person wishing to file a complaint or grievance on a matter of alleged employment discrimination must elect to raise the matter under either part 1614 or the negotiated grievance procedure, but not both. The record indicates that Complainant filed a grievance on November 18, 2014, on the same matters raised in her March 6, 2015 EEO complaint. However, the record does not contain a copy of the grievance between the Agency and union indicating that the grievance process permitted pursuit of discriminatory matters in the grievance process or in the EEO complaint process, but not both. Therefore, we find that the Agency improperly dismissed claim 5 on the alternative grounds that Complainant first elected to file a grievance this matter in a grievance procedure that permits allegations of discrimination. In summary, based on a review of the record, we AFFIRM the Agency's dismissal of reprisal as a basis. However, we REVERSE the Agency's final decision dismissing Complainant's formal complaint on the basis of sex, 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 claim on the basis of sex (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 (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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. If you file a request to reconsider and also file a civil action, 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 October 14, 2015 __________________ Date CERTIFICATE OF MAILING For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below: Mary J. Lake 1609 Herbert Pl San Diego, CA 92103 Sandra A. Winston, Deputy Assistant Administrator Equal Employment Opportunity and Civil Rights Compliance Small Business Administration 409 Third St., SW #6800 Washington, DC 20416 __________________ Date ______________________________ Compliance and Control Division 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 0120151948 2 0120151609 7 0120151948