U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jone A.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. Appeal No. 0120152632 Agency No. 15-65236-00197 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated July 13, 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 an Administrative Specialist at the Agency's Space and Naval Warfare Systems Center Atlantic (SPAWAR) in North Charleston, South Carolina. On May 19, 2015, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected her to discrimination on the bases of race, sex, color, age, and in reprisal for prior EEO activity when: a. on February 26, 2015, she was notified that a correction action had been made to her electronic Official Personnel File (e-OPF) to correctly identify her December 14, 2014 reassignment action to reflect that she was reassigned from STRL Career Path, General Support, NG-0318-03 to STRL Career Path, Administrative/Professional, NO-0342-Target 04; b. Complainant alleged that during a meeting with her first line supervisor and the Tier 2 supervisor to discuss the correction action, she was promoted on December 14, 2014 to the NO-342-04 level, and further alleged the correction action was initiated because a co-worker complained she had received a promotion but she was told by the Tier 2 supervisor that the correction action was accurate and reflected her current series and grade; c. the SPAWAR Executive Director denied her an appointment to discuss this issue, and provided a packet of information she had left for him regarding this matter to the Tier 1 supervisor against her wishes; d. she was subjected to a hostile work environment when a co-worker accused her of slamming her keyboard and throwing a pencil in a meeting and her supervisor took no action. The Agency dismissed the formal complaint for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1), 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 instant appeal followed. ANALYSIS AND FINDINGS The Agency improperly dismissed the instant formal complaint for failure to state a claim. The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. 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, 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). A review of the instant formal complaint and EEO Counselor's Report reflects that Complainant addressed more matters than the claim identified by the Agency in its final decision. In her formal complaint, Complainant stated that she is being subjected to ongoing harassment by her co-worker and Agency management. In the EEO Counselor's Report, the EEO Counselor noted that Complainant stated while her pay did not change "however she feels that this change is an action to keep her from being competitive or willfully obstructing her from competing for employment for other positions here at SPAWAR. Complainant alleges the issues began when her colleague [colleague] found out during a meeting on 4 February 2015 complainant was promoted. Complainant alleges that [co-worker] complained to the [Tier 2 supervisor], because she felt complainant shouldn't have been promoted and as a result complainant alleges her grade was changed from a NO-342-04 to a NO-342-03." Further, Complainant stated "who ever made the change in my personnel action erred on that and had an effective date of moving me to SPAWAR Charleston in 2014. In fact I moved from Maintenance Center Albany, GA in Apr 2012 to SPAWAR Charleston. This seemed to be a cover-up action that was a mistake where they were trying to show a reassignment. With an approval date of 25 February 2015 with an effective date of 14 Dec 2014, the original date of my grade change to NO 342 04. This is a retroactive action which was an error, it was an attempt to change my grade from a 342 04 to a 342 03...I have been eligible for a GS 11 since Sept 2011...this is 52 weeks time in grade." Second, Complainant stated that she informed her supervisor on numerous occasions that she was being subjected to disparate treatment and harassment by the co-worker and Agency management but she did not take any action. For instance, Complainant stated that the co-worker "was assigned to Records Management she was given preferential treatment over me. In February 2014 I was directed to relocate my desk so that [co-worker] could occupy my desk and I had to move across the room. Also initially in July 2013 when I came to Records Management I was told by [Tier 4 supervisor] that I would not attend training and I would not be teleworking. In response to [EEO Counselor], [Tier 4 supervisor] indicated that she approved the telework request so that [co-worker] and I would only work in the office one day per week...this is not the case. In June 2014 [co-worker] drafted up a request to telework and overheard the conversation she was having with [Tier 4 supervisor] and I said I would like to telework also. [Co-worker] submitted the schedule to [Tier 4 supervisor] and it was approved. In addition [Tier 4 supervisor] approved [co-worker] for Records Management Training for three (3) weeks." Complainant stated that when the co-worker falsely accused her of slamming her keyboard and throwing a pencil during a meeting, she was not comfortable working in the same environment as the co-worker "because if a person tells a lie on your once what is stopping them from telling another. I don't like environments where I have to feel that I have to protect my credibility because someone else falsely accused me." As a remedy, Complainant requested that that she be moved from Code 8.0 immediately; return to Albany, Georgia to her last position prior to SPAWAR; return to grade NO-342-04; and not to work with or for the co-worker anymore. 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 REVERSE the Agency's final decision dismissing Complainant's 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 The Agency is ordered to process the remanded claim (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 (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 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 6, 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 0120152632 6 0120152632 7 0120152632