U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dexter K.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 0120160390 Hearing No. EEOC 551-2014-00065X Agency No. FS201300344 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant's appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's July 15, 2015 final order concerning his equal employment opportunity (EEO) complaint alleging 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 At the time of events giving rise to this complaint, Complainant worked as a Human Resource Assistant at the Agency's Staffing and Classification, Region 10, facility in Juneau, Alaska. On February 5, 2013, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. On May 10, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to a hostile work environment and discriminated against him on the bases of race (Asian), national origin (Indian), and age (52) when: 1. He was subjected to ongoing unlawful harassment, including, but not limited to: (a) in April 2012, Complainant learned that the Agency cancelled a training course; (b) in June 2012, Complainant learned that a coworker had objected to his recent hire; (c) in November 2012, his supervisor failed to immediately approve his request to telecommute from Boston, Massachusetts; and (d) on unspecified dates, Complainant's supervisor demonstrated favoritism to Caucasian employees. 2. In January 2013, the Agency failed to select him for a GS-0201-11/12 Human Resources Specialist position, advertised under Vacancy Announcement Number 13-5106005-0547L-JA. 3. On February 13, 2013, the Agency constructively discharged him from his GS-7 Human Resources Assistant position. The complaint also contained three other allegations: 4. In November 26, 2012, Complainant was given a "Fully Successful" rating on his annual performance evaluation. 5. In November 2012, Complainant was not temporarily promoted to a GS-0201-13 HR Specialist position. 6. In July 2012, Complainant learned that he was not selected for the GS-0201-09/11 HR Specialist (Classification) position, advertised under Vacancy Announcement Number 12-5106005-3502DP-JS. On July 25, 2013, the Agency accepted allegations 1 through 3 for investigation. Regarding allegations 4 to 6, the Agency determined that there was sufficient evidence that Complainant knew, or reasonably should have known, of the discrimination, and failed to contact an EEO Counselor within the required 45-day time frame limitation. As such, the Agency dismissed allegations 4 through 6 on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). On November 20, 2013, after the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On January 22, 2014, Complainant filed a Request for Inclusion of Partial Dismissals seeking to reinstate the dismissed allegations (4-6). On February 13, 2015, the AJ concluded that the Agency's July 25, 2013 dismissal decision was appropriate for the reasons provided, and denied Complainant's January 22, 2014 request. On February 21, 2015, Complainant again sought to have the dismissed allegations reinstated and emphasized that he could not have known certain case-altering facts at the time the events at issue occurred. On March 6, 2015, the Agency submitted a motion for a decision without a hearing. Complainant objected. On July 10, 2015, over Complainant's objections, the AJ issued a decision by summary judgment in favor of the Agency. On July 15, 2015, the Agency issued a final order adopting the AJ's finding of no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment a court does not sit as a fact finder. Id. The evidence of the nonmoving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the nonmoving party's favor. Id. A disputed issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, summary judgment is not appropriate. In the context of an administrative proceeding under Title VII, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition. In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Here, the AJ denied Complainant's request to reinstate Claims 4 through 6, agreeing with the Agency's determination that these claims were untimely raised. Before the AJ, and his appeal to the Commission, Complainant asserted that there are genuine issues of material fact in dispute, and more significantly, incidents that were never addressed on their merits. Specifically, he argues that allegations 4 through 6 were improperly dismissed. Complainant asserts that the events detailed in these allegations were part of the evidence supporting his overall claim of a discriminatory hostile work environment. Complainant argued that he was denied promotional opportunities and not selected for various positions as part of the overall harassment campaign by his supervisor, and that these issues should have been addressed by the Agency and the AJ. Based on the record, we find that Complainant's claims were improperly fragmented throughout the process below. Specifically, the Agency and the AJ did not recognize and address Complainant's claim of an overall hostile work environment. That is, rather than finding that the harm experienced by Complainant was "de minimis" as to each incident, we find that the AJ should have instead viewed these incidents together to determine whether together they created a hostile work environment. Meaney v. Department of the Treasury, EEOC Request No. 05940169 (November 3, 1994) (an agency should not ignore the "pattern aspect" of a complainant's claims and define the issues in a piecemeal manner where an analogous theme unites the matter complained of). We find that a fair reading of the subject complaint reflects that Complainant alleged a justiciable harassment/hostile work environment claim spanning all six "claims." By alleging a pattern of harassment, Complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993). Moreover, the Supreme Court has held that a complainant alleging a hostile work environment 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, 536 U.S. 101, 122 S. Ct. 2061 (2002). The Court further held that untimely discrete acts may be used as evidence in support of a timely claim ongoing harassment claim. Here, that means that allegations 4-6, which involve discrete acts (performance rating, temporary promotion and non-selection), cannot be processed as independent claims of discrimination due to timeliness concerns, but should be considered as evidence in support of Complainant's overarching claim of discriminatory harassment/hostile work environment.2 Therefore, after careful review of the record and consideration of the arguments presented on appeal, we find that the AJ's decision, which did not properly consider allegations 4-6, should be vacated and the matter should be remanded for further consideration as a claim of ongoing harassment/hostile work environment, culminating in a constructive discharge. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we VACATE the Agency's final order implementing the AJ's summary judgment decision finding of no discrimination. This case is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER Within thirty (30) days of the date this decision is issued, the Agency shall submit to the Hearings Unit of the EEOC's Washington, D.C. field office a request for a hearing regarding Complainant's complaint, including a claim of ongoing discriminatory harassment/hostile work environment culminating in a constructive discharge (to include as evidence all six "claims"). The Agency shall include the relevant complaint file with its request. The assigned Administrative Judge may, if appropriate, order the Agency to supplement the investigative record, or may gather the necessary additional evidence through a hearing. Thereafter, the Administrative Judge shall 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. Carlton M. Hadden, Director Office of Federal Operations February 7, 2018 __________________ 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 This means that if discrimination were established with regard to these incidents, Complainant would not be entitled to equitable relief for the individual incidents such as retroactive placement in the position he was not selected for, with a backpay award. However, these incidents should be considered in adjudicating the ongoing harassment claim, and in remedying Complainant if he prevailed on his overall hostile work environment claim when, for example, determining a compensatory damages award. By contrast, allegations 2 and 3, also part of the harassment claim, additionally state an independent claim of discrimination (non-selection and constructive discharge) as they were timely raised. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120160390 7 0120160390