U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zenobia P.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120160264 Hearing No. 551-2015-00174X Agency No. 1E-982001-115 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated October 29, 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. The Agency's final order fully implemented the Equal Employment Opportunity Commissions Administrative Judge's finding that Complainant did not, make EEO contact/file an EEO complaint regarding the underlying alleged harassment. The AJ found that Complainant lacked standing because her complaint was about the Agency's own informal sexual harassment investigation process. 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. The Agency's final order is REVERSED. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Handler, P-04 at the Agency's Seattle NDC facility in Federal Way, Washington. Complainant complained to management that a coworker subjected her to harassment based on her sex. Management removed the coworker from the work area and conducted an investigation. The investigation determined that the coworker had not sexually harassed Complainant. He was therefore allowed to return to their shared work area. On February 18, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of sex (female) when on December 24, 2014, she became aware that management determined she was not sexually harassed by a coworker. After an investigation, Complainant requested a hearing before an Administrative Judge. Believing that Complainant did not have standing because she did not file an EEO complaint regarding the underlying sexual harassment, the AJ ordered the parties to provide a brief regarding standing and both parties complied. The Agency argued that Complainant could have, but did not, file an EEO complaint regarding the underlying alleged sexual harassment. The Agency asserted that complainant did not suffer any harm when she became aware that management made its finding of no discrimination, and thus she was not aggrieved and failed to state a claim upon which relief could be granted. Complainant maintained that the investigation was a farce and that the affidavits taken did not "add up." She also alleged that a female member of management should have been assigned to talk to her as she did not feel comfortable disclosing the details of the alleged harassment to a male member of management. Complainant requested a change of tours to avoid the alleged harasser but was told that nothing was available. Complainant alleged that the Agency failed in its legal obligation to investigate sexual harassment and had violated the Agreement on Behavior in the Workplace, a document agreed to by the Agency and the Union. The AJ determined that federal regulations provide for dismissal of complaints that allege improper processing of the underlying complaint. 29 C.F.R. 1614.107(a)(8). EEOC's Management Directive, MD-ll0 at Chapter IV(A)(12), also addresses the issue. MD-110 at Chapter VI(D)(1) addresses recourse for the complainant who is dissatisfied with the manner in which his or her complaint was processed, as well as what is required of the Agency when a complainant complains about the manner in which a complaint was processed. The AJ found that Complainant's allegation failed to state a claim under Title VII. The AJ indicated that Complainant could have, but did not, make EEO contact/file an EEO complaint regarding the underlying alleged harassment. Her complaint about the Agency's finding failed to render her aggrieved, and thus she lacked standing and her complaint was dismissed. The Agency issued a final order which fully implemented the AJ's finding. CONTENTIONS ON APPEAL On appeal, Complainant contends, among other things, that she disagrees with the AJ's decision and the rationale behind the decision. In response, the Agency asserts that Complainant did not make EEO contact or file an EEO complaint regarding the underlying alleged sexual harassment itself, but rather claimed she experienced harassment when the Agency, after conducting an investigation of the alleged sexual harassment by a coworker, determined that Complainant had not been subjected to harassment based on sex. The Agency contends that her complaint about the Agency's findings fails to render her aggrieved, and thus she lacks standing. The Agency requests that the AJ's dismissal be affirmed. ANALYSIS AND FINDINGS The Commission finds that Complainant's complaint does state a claim and that its dismissal was erroneous. In order to state a claim under the EEOC regulations, Complainant must allege that she suffered a harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). In a case where there is an allegation of coworker harassment, a complainant, in order to prove Agency liability, must focus in part on management's response upon learning of the harassment. In doing so, we find that Complainant is raising the underlying harassment claim and why she believes the Agency should be held responsible for it. Accordingly, we find that she is aggrieved and does state a claim. Likewise, we find that 29 C.F.R. 1614.107(a)(8) is inapplicable here. Complainant is not expressing dissatisfaction with the processing of a prior EEO complaint, she is expressing concerns about the Agency's investigation of her harassment claims which were not the basis of an EEO complaint at that time. CONCLUSION Accordingly, the Agency's final order dismissing Complainant's complaint is REVERSED. The Agency will comply with the Order below. ORDER The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit of the Seattle Field Office within fifteen (15) calendar days of the date this decision is issued. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 _5/29/18_________________ 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 0120160264 5 0120160264