U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Detra W.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 0120152326 Agency No. 1B-061-0028-15 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated June 4, 2015, dismissing her 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. Upon review, the Commission finds that Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim.2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency's Hartford Processing and Distribution Center facility in Hartford, Connecticut. Complainant previously filed her first formal complaint on October 24, 2014. On March 18, 2015, Complainant contacted an EEO Counselor for a second time. On May 20, 2015, Complainant filed her second formal complaint [Agency No. 1B-061-0028-15]. That complaint is the subject of this appeal. She alleged that the Agency subjected her to discrimination on the bases of race ("African"), national origin (Ghanaian), color (Black), and reprisal for her current protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On July 21, 2014, Complainant was moved out of her work area; 2. On July 23, 2014, Complainant's manager told her "There is the door, you can walk out;" 3. On September 25, 2014, Complainant was sent home; 4. On October 24, 2014, Complainant's manager verbally attacked her in front of her co-workers; 5. On January 23, 2015, her manager denied Complainant's request to use Family Medical Leave Act (FMLA) leave; 6. On March 9, 2015, Complainant's manager "got in [her] personal space during a service meeting; and 7. On March 29, 2015, Complainant's manager threatened to take Complainant off the clock. In addition, Complainant claimed that, on or about September 5, 2014, Complainant learned that management did not discipline a co-worker who had provided a false witness account against Complainant. The Agency did not accept this claim. The record shows that Complainant contacted the EEO counselor on August 15, 2014 with regard to her claim that her supervisor moved her out of her work area on July 21, 2014. She was told that she could amend her pending complaint. She also raised these allegations on October 24, 2014, but was told that she should file a new complaint. Complainant complied with the EEO counselor's instructions. The record shows that Complainant timely raised the allegation involving an incident that she claims occurred on October 7, 2014, rather than the October 24, 2014 date noted in the Agency's receipt acknowledgement. The Agency issued a final decision dismissing claims 1 through 5 as untimely raised with the EEO Counselor. The Agency reasoned that Complainant's EEO contact was made "between 8 months and 54 days after the issues alleged to be discriminatory." The Agency further concluded that Complainant should have raised the incidents occurring between July 2014 and January 23, 2015, during the investigation of her first complaint. Next, the Agency dismissed claims 5 through 7 for failure to state a claim. The Agency concluded that "the totality of the circumstances and the actions complained of, even if true, are neither sufficiently severe nor pervasive enough to create a discriminatory hostile or abusive working environment." The Agency reasoned that the FMLA allegation was a collateral attack on the proceedings of another forum and that Complainant "failed to relate or infer any adverse action being taken against her or any loss of a term, condition, or privilege of employment" due to her manager being in Complainant's "personal space" or the alleged threat to take Complainant off the clock. This appeal followed. ANALYSIS AND FINDINGS An agency shall accept a complaint from any 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, 1614.106(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 (Apr. 21, 1994). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). On appeal, Complainant asserts that she made timely EEO contact consistent with the Agency's instructions, did not lodge a collateral attack, and sufficiently alleged that she suffered tangible, adverse effects on her employment due to the Agency's actions. In addition, she argues that the Agency erred when it dismissed her claims of a regular and persistent pattern of harassment. Untimely EEO Contact The Agency dismissed the complaint for untimely EEO counseling. 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. In this case, the record shows that Complainant made timely EEO contact, but the Agency advised her to take additional steps. Specifically, she was informed that she should amend her first complaint to add the new claims, which the Agency refused to accept. After she was told to file a new complaint, Complainant timely did as the Agency instructed. In addition, Complainant is alleging that she has been subjected to an ongoing pattern of discriminatory and retaliatory harassment that has taken many forms including moving her work area location, verbal harassment, subjecting her to harsher standards, infringing on her personal space, retaliatory denial of FMLA leave and a threat to take her off the clock. The Supreme Court has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (June 10, 2002). In this case, Complainant's August 15, 2014 EEO counselor contact was timely made from some of the events she proffers as examples of the alleged ongoing harassment/hostile work environment. For these reasons, we find that the Agency failed to meet its burden of establishing that Complainant's August 15, 2014 contact was untimely made with regard to the alleged claims from July 21, 2014 and ongoing. Failure 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 s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). The Commission has held that where, as here, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). In this case, a fair reading of the complaint shows that Complainant has alleged ongoing harassment when her supervisor moved her out of her work area, sent her home, verbally attacked her, denied her request for FMLA leave,3 and threatened her. We find that Complainant's allegations are sufficient to state a claim of a hostile work environment. Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint. We hereby REMAND the complaint to the Agency for further processing in accordance with this decision and the Order below. ORDER The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The remanded claims include claims one through seven and the claim that, on September 5, 2014, Complainant became aware that management did not discipline a co-worker who provided a false witness account against Complainant. 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 3, 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 Complainant has another pending appeal which pertains to Agency Complaint No. 1B-061-0069-14, filed on October 24, 2014. That complaint is the subject of EEOC Appeal 0120152180, filed on May 18, 2015. This appeal (and Complainant's Brief) pertains to Agency No. 1B-061-0028-15. 3 We do not construe Complainant's claim to be a collateral attack. In this case, she is alleging that her manager discriminated and retaliated against Complainant when the manager denied her requested FMLA leave. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120152326 2 0120152326