U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elda S.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency. Appeal No. 0120152217 Agency No. ARFTLWOOD15FEB00615 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated April 23, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Training Technician at the Agency's Vertical Skills Division in Fort Leonard Wood, Missouri. On February 27, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On April 16, 2015, Complainant filed the instant formal complaint. Therein, Complainant claimed that she was subjected her to sexual harassment and a hostile work environment on the bases of sex and age when: a. on December 17, 2014, she spoke with the Lieutenant and reported she was subjected to harassment by her supervisor since 2008, when she started employment with the Engineer School;2 b. on December 5, 2014, she received a negative comment on her evaluation from the Captain, which she felt resulted from the supervisor's negative comments; c. on July 20, 2014, after a unit sensing session, she reported to the Captain unfair pay, extra job responsibilities, hostile work environment, discrimination and negative comments about her age and sex coming from the supervisor; d. sometime in May 2014, during her mid-point counseling, the supervisor made reference to her age i.e., "you are not young anymore and you are too old to retain information" when she asked to take an Interior Electrician course. As a remedy, Complainant requested that she receive an apology from the Battalion for being subjected to sexual harassment by her supervisor; that her duty description be changed to reflect her duties; to be paid for the additional administrative duties she has been directed to perform, and compensatory damages. In its April 23, 2015 final decision, the Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). Specifically, the Agency determined that Complainant initiated EEO Counselor contact on February 27, 2015, which the Agency determined was more than forty-five days after the alleged discriminatory event occurred. The Agency noted during the pre-complaint interview, Complainant was asked about her EEO contact, and Complainant replied she was unaware of the EEO complaint process. The Agency stated, however, during the same interview Complainant later acknowledged she attended all mandatory EEO training and was aware of the EEO Posters 72 outlining the requisite 45-day limitation period to contact the EEO office. Complainant, on appeal, stated "I believe it is unjust to dismiss my complaint for untimeliness. There is ample electronic evidence of an ongoing pattern of discrimination and harassment that caused me to suffer anxiety and humiliation in the work place. My statement was typed incorrectly by the intake counselor, [intake counselor]. She incorrectly recorded the dates. She failed to include the fact that back in 2012 [supervisor] was under investigation for a sexual comment that he made to an employee in the front office." The instant appeal followed. ANALYSIS AND FINDINGS 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. We first address whether the Agency properly framed Complainant's claims. The record reflects that the Agency analyzed Complainant's allegations as discrete acts. However, based on the factual allegations set forth in the instant formal complaint and the evidence in the record, the Commission finds that the instant formal complaint should have been viewed in the context of stating a variety of alleged incidents of harassment and the creation of a hostile work environment. We further find that the Agency improperly analyzed the claims by distilling it into a singular allegation. However, a fair reading of the allegations in the instant complaint, as well as the related EEO counseling report and pre-complaint, reveals that Complainant is, in essence, raising a complaint on ongoing harassment. We note that Complainant, on appeal, states that in February 2015, she met with the Captain "to request corrections on a comment made in my performance evaluation by [Lieutenant]." Therein, Complainant stated that she is subjected to ongoing harassment. By alleging a pattern of harassment including incidents which purportedly occurred within forty-five days of the initial EEO Counselor contact, Complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993). We REVERSE the Agency's final decision dismissing the formal complaint, 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 (sexual harassment/hostile work environment and violation of the 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 Complainants 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 March 30, 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 The record reflects that in February 2015, Complainant's supervisor resigned from Agency employment. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120152217 5 0120152217 7 0120152217