U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Trent M.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency. Appeal No. 0120152440 Agency No. ARJMC14SEP03854 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 14, 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 an Explosives Material Handler, WG-6502-06, at the Agency's Blue Grass Army Depot, Industrial Services Division in Richmond, Kentucky. On October 7, 2014, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. On December 22, 2014, Complainant filed the instant formal complaint. Therein, Complainant claimed that he was subjected to harassment and a hostile work environment in reprisal for prior EEO activity when: a. on September 10, 2014, the EEO Officer spoke with him privately and denied talking about him, indicating she did not know who was saying she was talking about him; b. on August 20, 2014, his supervisor notified him that he was no longer assigned to work in the paint shop; c. on August 19, 2014, the EEO Officer violated the Privacy Act and also defamed him by telling an employee that he was trouble; d. on August 18, 2014, the supervisor gathered his employees together and apologized for returning Complainant to the paint shop; and e. on August 11, 2014, he was denied a WG-6, Explosives Material Handler position because of defamation by the EEO Officer. In its January 14, 2015 final decision, the Agency dismissed claims a - b and d - e 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 October 7, 2014, which it found to be beyond the 45-day limitation period for making timely EEO contact. The Agency dismissed claims a - b, c concerning defamation, and d - e, 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. The Agency also dismissed claims b, d and e (harassment claim) on the alternative grounds that the claim had not been raised with an EEO Counselor and that it is not like and related to matters for which Complainant underwent EEO counseling, pursuant to 29 C.F.R. § 1614.107(a)(2). Finally, the Agency dismissed portion of claim c concerning the EEO Officer violating the Privacy Act on the grounds of failure to state a claim, finding that the Commission has no jurisdiction over enforcing the Privacy Act. The instant appeal followed. ANALYSIS AND FINDINGS Not like or related to a matter that has been brought to EEO Counselor (claims b, d and e) The Agency found that claim b, d and e should be dismissed because they were not raised before the EEO Counselor. We note, however, that pursuant to 29 C.F.R. § 1614.106(d), a complainant may amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related in the formal complaint. While 29 C.F.R. § 1614.107(a)(2) states that the Agency shall dismiss a complaint that raises a matter that has not been brought to the attention of an EEO Counselor and is not like or related to a matter that has been brought to the attention of an EEO Counselor, we find that dismissal pursuant to this regulation does not apply in this case. Instead, a fair reading of the instant record reflects that Complainant alleged that he was being subjected to ongoing harassment by his supervisor, the EEO Officer and other Agency officials. In addition, the formal complaint contains additional examples of alleged harassment by the same supervisor and EEO Officer which are like or related to the instances alleged in the informal complaint, and Complainant is entitled to make such amendments under 29 C.F.R. § 1614.106(d). Therefore, we find that the Agency improperly dismissed claim b, d and e on the grounds that the claims had not been raised with an EEO Counselor and that it is not like or related to the matters for which Complainant underwent EEO counseling. Failure to state a claim (claims a - e) EEOC Regulation 29 C.F.R. §1614.107(a)(1) provides for the dismissal of a complaint which fails to state a claim within the meaning of 29 C.F.R. §1614.103. In order to establish standing initially under 29 C.F.R. §1614.103, a complainant must be either an employee or an applicant for employment of the agency against which the allegations of discrimination are raised. In addition, the claims must concern an employment policy or practice which affects the individual in his or her capacity as an employee or applicant for employment. 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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). The Agency fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment by dismissing allegations a - b, claim c concerning defamation, and claims d - e for failure to state a claim. A fair reading of the formal complaint reflects that Complainant claimed that he was subjected to a series of related incidents of harassment by the EEO Officer and his supervisor. Moreover, we note in the EEO Counselor's Report, the Counselor stated that Complainant "feels because of the on-going defamation of character by [EEO Officer] taking about him, stating he was trouble it is affecting the way individuals look at him in a professional manner in the workplace." As a remedy, Complainant requested to be placed in a permanent position in Chemical as a Toxic Material Handler, WG-7 or WG-9, payment for lost hazard pay and lost overtime; and the EEO Officer be counseled on the Privacy Act. Given the breadth of Complainant's claims as noted above, a fair reading of the record reflects that he is alleging a pattern of harassment, and has therefore stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993). We do note, however, that to the extent that a portion of claim c may address a violation of the Privacy Act, 5 U.S.C. § 552(g)(1), jurisdiction for such a matter rests exclusively in the United States District Courts. Bucci v. Department of Education, EEOC Request Nos. 05890289, 05890290, 05890291 (April 12, 1989). Untimely EEO counselor contact (claims a - e) The Agency also improperly dismissed claims a - e on the grounds of untimely EEO Counselor contact. The record reflects that Complainant initiated EEO Counselor contact on October 7, 2014. 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 October 7, 2014 EEO Counselor contact, as discussed above (i.e. the matters addressed in claim a). Because a fair reading of the record reflects that the matters identified in claims a - e are part of that harassment claim, we find that the Agency improperly dismissed these claims on the grounds of untimely EEO Counselor contact. We REVERSE the Agency's final decision dismissing claims a - e 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 claims a - e (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 claim 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 January 28, 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 0120152440 6 0120152440 8 0120152440