U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Allegra P.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency. Appeal No. 0120152911 Agency No. ARLEWIS15JUNE02102 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated July 17, 2015, dismissing a formal complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. and Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 16.405. BACKGROUND During the period at issue, Complainant worked as a Health Technician at the Agency's Madigan Army Medical Center facility in Joint Base Lewis-McChord, Washington. On July 17, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of sex, mental disability, and disability. On that same day, July 17, 2015, the Agency issued a final decision. The Agency determined that the formal complaint was comprised of the following claim: on June 4, 2014, Complainant received an unfavorable performance rating which prevented her from receiving a within-grade increase, (WGI). The Agency dismissed the formal complaint on the grounds of untimely EEO contact, in accordance with EEOC Regulation 29 C.F.R. § 1614.107(a)(2). The Agency determined that Complainant initiated EEO Counselor contact on June 15, 2015, and found that this contact was well beyond the applicable time limitations regarding her June 4, 2014 performance rating. This appeal followed. On appeal, Complainant challenges the Agency's dismissal and alleges that she has been subjected to hostile work environment beginning in October 2013. According to Complainant, the ongoing harassment she suffered culminated in her resignation in January 2015. Moreover, contrary to the Agency's assessment that the initial EEO Counselor contact occurred in June 2015, Complainant instead asserts that she first contacted the Agency regarding her concerns in February 2015. The EEO Counselor describes Complainant's claims as follows: "Was the aggrieved subjected to an ongoing hostile work environment (October 2013 - 23 January 2015) and discriminated against based on her disability (right hand nerve damage) and reprisal (requesting reasonable accommodation) by [named individual] Head RN, NCOIC Staff Sergeant [named individual] and Lead Technician [named individual], Ophthalmic Clinic, Madigan Army Medical Center when: 1. On June 4, 2014, she received a total performance rating of 4 (fair), which prevented a within -grade increase (WIGI). (Department of Army performance rating is 1-5 with 1 being Successful and 5 being Unsuccessful) (AR-690-400 2-3) 2. On unspecified dates in March, April, July, October and December 2014 the aggrieved was subjected to disparate treatment in the distribution of her work assignments. 3. The aggrieved was charged leave without pay on pay periods 12 July 2014, 18 October 2014, 1 November 2014, 15 November 2014, 28 November 2014 and 24 January 2015. 4. On 13 March 2014, 2 April 2014, 15 October 2014, and 5 December 2014 [Complainant] was counseled and had a memorandum for record (MFR) for performance expectations by management officials. 5. On March 11, 2014, [named individual], Chief Ophthalmic sent [Complainant] and cc'd [Complainant's] supervisory chair an email titled 'Keeping it simple, timely flow and clear medical record.' 6. Starting in October 2013, during staff morning report [Complainant] was compared to team members on productivity on patient care and informed she was in last place. 7. On an unspecified dated in July 2014 the aggrieved was assigned work to the super clinic which required her to stand for long periods of time, was not provided breaks and was assigned to scan medical documents which caused her to sue her compromised fine motor skills. 8. On and unspecified date in July 2014, she wrote an appeal for the performance rating. When she inquired on the status of the WGI, [named individual] stated the appeal was lost and she would be reevaluated in 3 months and would not receive the WIGI. The report of the EEO Counselor also indicated that Complainant's supervisor and two other named Agency officials were aware of Complainant's diagnosis of degenerative disc disease and hand nerve damage. According to the report of the EEO Counselor, on July 21, 2014, Complainant requested reasonable accommodation but resigned her position with the Agency prior to the completion of the reassignment process through the Agency's Disabilities Program. Complainant also alleges on appeal, that although the Agency knew of her medical diagnosis and the nerve damage in her right hand, she was compared to other employees and rated unfairly in comparison to their abilities to complete work assignments. Complainant contends also that she was charged absent without leave or had her leave request changed to leave without pay when her doctor's appointments ran longer than expected despite the fact that she would call to make her supervisor aware. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.105(a)(1) requires that an aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. However, this time requirement may be waived as to certain allegations within a complaint when the complainant alleges a continuing violation, i.e., a series of related discriminatory acts. If one of the related acts complained of falls within the 45-day period for contacting a counselor, the complaint is timely with respect to all of the acts which constitute the continuing violation. See Valentino v. United States Postal Service, 674 F.2d 56 (D.C. Cir. 1982); Clark v. Olinkraft, Inc., 556 F.2d 1219 (5th Cir. 1977), cert. denied, 434 U.S. 1069 (1978). The Commission has held that where there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Homer Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992). Moreover, where, a complainant alleges a pattern and practice of discrimination against him, an agency is obligated to initiate an inquiry into whether any allegations untimely raised fall within the ambit of the continuing violation theory. Id. First, we determine that the matter of the subject complaint was not simply the claim as identified by the Agency in its final decision. We have extensively detailed the matters that were the subject of EEO counseling, as noted above. When considering those matters in conjunction with the formal complaint, as reinforced by Complainant's appellate arguments, we determine that Complainant alleged that she had been harassed to such a point that the harassment culminated in her separation from Agency employment. Second, a review of the record discloses two critical EEO contact dates in question in the instant matter. In response to Complainant's appeal, the Agency submitted a brief restating its position that Complainant failed to contact an EEO Counselor in a timely manner. The Agency asserts that Complainant sought EEO counseling in June 2015, concerning her poor performance appraisal. However, the Agency also acknowledges in its brief to the Commission that during her initial EEO contact on February 25, 2015 "Complainant stated that she was being forced out of her job because of her disability and she ultimately resigned on January 23, 2015 because she was unable to do her job. " (emphasis added). The EEO Counselor's report states that Complainant contacted the Agency's EEO Complaints Manager on February 25, 2015 indicating that she wanted to file a complaint or participate in Alternate Dispute Resolution. According to the EEO Counselor's report, "the aggrieved agreed to an exit interview ...as relief for her issues." However, in its final decision, the Agency contends that Complainant elected not to pursue the complaint process further, reasoning instead that Complainant again initiated counselor contacted in June of 2015. Upon review, we find that the record discloses that Complainant first contacted the Agency regarding her concerns in February 2015. Moreover, we find that the record does not support a determination that Complainant affirmatively withdrew or abandoned her February 2015 contact, and we will therefore construed the initial EEO contact as indeed, having occurred on February 25, 2015. Third, a review of the instant record further reflects that Complainant based her EEO contact and subsequent EEO complaint on a series of events and actions directly and indirectly related to work conditions and/or her job performance. Complainant claimed numerous incidents as outlined in the report of the EEO Counselor, which allegedly occurred between October 2013 and January 23, 2015 when she resigned from the Agency. Complainant alleged that the incidents were of a similar nature, which purportedly resulted in the Agency's failure to accommodate her disability and, subsequently, a constructive discharge. Upon review, we find that the alleged discriminatory incidents, regarding Complainant's work conditions and/or her job performance occurring from October 2013 to January 23, 2015, are related to the issue of her constructive discharge in January 2015 for which she sought EEO counseling in February 2015. We therefore determine that because some of the events occurred well within forty-five days of Complainant's job separation, all of the alleged harassment claims will be construed as timely pursued with an EEO Counselor. CONCLUSION Accordingly, the Agency's decision to dismiss the instant complaint as untimely in accordance with EEOC Regulation 29 C.F.R. § 1614.107(a)(2) is REVERSED. The complaint (defined herein as a harassment claim culminating in job separation) is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER (E0610) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. 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 April 29, 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 0120152911 2 0120152911