U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eileen S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 0120160195 Agency No. 4B-040-0023-15 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated August 24, 2015, dismissing a formal complaint of unlawful employment discrimination alleging violations 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 a Rural Carrier Associate at the Agency's Gorham facility in Kennebunkport, Maine. On April 22, 2015, Complainant initiated contact with an EEO counselor. Informal efforts to resolve her concerns were unsuccessful. On July 31, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex and reprisal for prior protected EEO activity when: 1. from approximately September through December 2012, Complainant was subjected to unwelcomed sexual harassment when a co-worker grabbed her buttocks and breasts; and when she reported these incidents to management, no action was taken; 2. from around January through March 2013, an Agency contractor physically picked Complainant up and made lewd comments to her, which she again reported to management, which again took no action; 3. between January and May 2013, a supervisor routinely touched Complainant's shoulders and told her that she was "hot;" 4. on June 21, 2014, Complainant was forced to go out on leave due to stress of the sexual harassment; 5. from July through November 2014, management made it difficult for Complainant to retrieve her personal belongings from the office; and, 6. from June 2013 through March 2015, a co-worker would send Complainant sexual text messages and when she showed the messages to management, no action was taken. On August 24, 2015, the Agency issued its final decision. Therein, it dismissed Claims 1 through 5 on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined that Complainant requested pre-complaint counseling over two and one-half years after the allegedly discriminatory events first occurred. The Agency determined that the first incidents started in September 2012, and that the discrete acts occurred on specific dates which had an instant effect on a term or condition of Complainant's employment. The Agency stated that Complainant was obligated to request pre-complaint counseling no later than 45 days from the date of such discrete acts. Regarding Claim 6, the Agency dismissed this claim pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Specifically, the Agency found that Complainant was lodging a collateral attack on the proceedings of another forum, specifically proceedings related to the Department of Labor and the Office of Workers' Compensation Programs (OWCP). The Agency stated that Complainant filed a worker's compensation claim that was denied on March 11, 2015 in regard to Claim 6. The Agency stated that as Complainant was dissatisfied with this outcome, she should have raised her concerns with OWCP, and not through the EEO process. The instant appeal followed. On appeal, Complainant contends, through her attorney, that the Agency's dismissal is improper because the sexual harassment is ongoing. Complainant contends that the counseling period should be extended due to the Agency's failure to refer Complainant to an EEO Counselor when she complained to management of the on-going harassment. Complainant then provided a detailed account of the various incidents as previously listed in the pre-complaint and formal complaint documents. Complainant also provided that the latest incident of sexual harassment occurred on March 18, 2015, when a co-worker called Complainant on her personal cell phone and stated that he was in love with her and wanted her to go back to work. Complainant contends that the co-worker had blocked his number and therefore she did not know who was calling when she answered. Complainant contends that after she hung up the phone, the co-worker began texting her and advising her not to tell anyone that he had called. Complainant asserted that the co-worker purportedly proceeded to text Complainant that she is a "hottie" and that he missed her. Complainant contends that this incident occurred within the 45 days of her contact with an EEO Counselor, and as such, makes her overall claim of sexual harassment timely. Additionally, Complainant contends that she was not aware of the EEO process and was never informed of such procedures by the Agency, despite bringing several sexual harassment incidents to management officials. Finally, Complainant argues that the Agency's determination that Complainant's Claim 6 is a collateral attack on the Office of Worker's Compensation/Department of Labor is without foundation. Complainant states that Claim 6 is related to the overall sexual harassment she faced while at the Agency's facility. In response, the Agency reiterated arguments from its final decision. The Agency additionally stated that evidence revealed that EEO posters were on display at Complainant's facility, and that Complainant offered no response on appeal as to why her complaint was untimely. Regarding Claim 6, the Agency states that it is unclear as to what Complainant was claiming, but that if her complaint was for her dissatisfaction of an OWCP decision then the claim would be within the jurisdiction of Department of Labor and OWCP, and not with the Agency, or the EEO process. ANALYSIS AND FINDINGS 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. However, the Supreme Court has held that a complainant alleging a hostile work environment, such as Complainant in this case alleges, 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 National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). See also Brown v. Dept. of the Army, EEOC Request No 05970558 (Sept. 15, 2000) (the Commission determined that Complainant had demonstrated a continuing violation and that the agency had erroneously dismissed complainant's complaint in a piecemeal method under theories of untimeliness and failure to state a claim). Here, Complainant has brought forth sexual harassment claims continually spanning from September 2012 through to, at least, March 18, 2015. The latest alleged incident falls within the 45 day window as Complainant contacted an EEO Counselor on April 22, 2015. Furthermore, Complainant had previously addressed the continuing nature of her concerns in both her pre-complaint and formal complaint, and further reiterated the continuing nature of the alleged discrimination in her appeal brief. Finally, as to the Agency's dismissal of Claim 6 on the grounds that Complainant was lodging a collateral attack, we find the Agency's arguments unpersuasive. Complainant's Claim 6 clearly addresses her overall claim of continuing sexual harassment at the Agency and cannot be reasonably construed as a collateral attack relating to another forum CONCLUSION The Agency's final decision dismissing the formal complaint for failure to state a claim is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER (E0610) The Agency is ordered to process the remanded claim (ongoing 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 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, Director Office of Federal Operations January 19, 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 0120160195 6 0120160195