U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Micki C.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. Appeal No. 0120152287 Agency No. 14-00027-00632 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated May 8, 2015, dismissing some claims raised in the formal complaint, and finding no discrimination regarding the remaining claims. The formal complaint addressed 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 an Intelligence Specialist at the Agency's U.S. Marine Corps (USMC) facility in Washington D.C. On March 25, 2014, Complainant filed the instant formal complaint. Therein, Complainant alleged that she was subjected to ongoing harassment on the bases of sex (female), age (51) and in reprisal for prior EEO activity. In support of her claim, Complainant alleged: 1. from August 20, 2010 to present, Marines strip down from their street clothes to their underwear and change to their utility uniforms in front of Complainant's desk; 2. on November 20, 2013, her performance appraisal and ratings were changed and lowered from 3s and 4s to 2s; 3. on November 22, 2013, she received an email from a co-worker which contained overtly pornographic materials; 4. effective January 9, 2014 and continuing to present, she has been subjected to shorter time periods regarding due dates on work she has been assigned; 5. on January 24, 2014, she received an email from a Lieutenant advising of a change in her work hours, from her current schedule of 0600 - 1430, to core hours beginning no later than 0830, and ending no earlier than 1530; 6. from August 20, 2010 to present, Marines used profanity throughout the office; 7. on December 16, 2013, she was advised of her new supervisor, a USMC Major, who was considered a peer rather than a superior ranking supervisor; and 8. on January 15, 2014, during a team meeting, she was subjected to a conversation regarding the planning of her male co-worker's retirement ceremony which was the same day she was notified that his conduct was inappropriate and that corrective action would be taken. 2 On May 21, 2014, the Agency issued a partial dismissal. Therein, the Agency dismissed allegations 6 - 8 for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). Following an investigation on claims 1 - 5, Complainant requested a final decision. On May 8, 2015, the Agency issued the instant final decision concerning claims 1 - 5, on the merits, finding no discrimination. The Agency found that Complainant did not show by a preponderance of the evidence that she was discriminated against on the bases of sex, age and retaliation. The Agency concluded that, to the extent that Complainant raised disparate treatment claims, Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination. Regarding Complainant's ongoing harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on sex, age and retaliation. The instant appeal followed. ANALYSIS AND FINDINGS In the instant case, the Agency addressed allegations 1 - 5 on the merits, finding no discrimination. The Agency noted that the investigator "was unable to obtain interviews with the responsible management officials. Therefore, interrogatories obtained by the EEO Counselor [were] used in this analysis." The Agency also dismissed allegations 6 - 8 for failure to state a claim. However, after careful review of the record, we find that the Agency did not properly characterize Complainant's claims when it conducted its investigation of her formal complaint; when it issued a May 21, 2014 partial dismissal; and when it issued the instant final decision on May 8, 2015, dismissing allegations 6-8 on procedural grounds and found no discrimination concerning allegations 1-5. The Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment. A fair reading of the formal complaint in its entirety reflects that Complainant claimed that she was subjected to a series of related incidents of harassment from August 2010 through the present. As a remedy, Complainant requested to be transferred to a different position under different Agency officials. 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). We acknowledge that the Agency has attempted to dispose of this matter through various arguments on appeal. However we are not persuaded. Without a proper investigation of this claim, it cannot now simply be adjudicated on appeal. Moreover, in addressing Complainant's harassment claim, the Agency improperly narrowed its examination to only five incidents. However, a fair reading of the formal complaint and the related EEO counseling report, reveals that Complainant was raising at least eight incidents of alleged harassment, beginning in August 2010 to the present. The Agency could not determine that Complainant failed to prove a discriminatory hostile work environment without investigating and considering the full range of incidents Complainant alleged made up her claim. Therefore, due to the inadequacy of the investigation, we VACATE the Agency's finding of no discrimination regarding claims 1 - 5. We further REVERSE the Agency's partial dismissal of claims 6 - 8 for failure to state a claim. The formal complaint is REMANDED to the Agency for continued processing in accordance with the ORDER below. ORDER The Agency is ORDERED to take the following action: 1. Within ninety (90) calendar days of the issuance of this decision, the Agency shall conduct and issue a supplemental investigatory report, in accordance with 29 C.F.R. § 1614.108, into Complainant's claims of ongoing discriminatory harassment/hostile work environment based on sex, age, and/or retaliation for prior EEO activity concerning allegations 1 - 8, as well as other evidence Complainant may offer relevant to her claim and the time period in question. To the extent that the Agency's prior investigation examined parts of these claims, the Agency may incorporate that pre-existing evidence into its supplemental investigatory report. 2. The Agency shall issue the supplemental investigatory report with a new notice of right to request a hearing before an EEOC administrative judge or an immediate final decision pursuant to 29 C.F.R. § 1614.110. Documentation reflecting that the Agency has taken the action referenced above 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 October 12, 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 For ease of reference, the Commission has re-numbered Complainant's allegations in support of her claim as claims 1-8. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120152287 2 0120152287 7 0120152287