U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Renee P.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency. Appeal No. 0120160524 Agency No. ARCEHECSA14SEP04209 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated June 18, 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. BACKGROUND The record reflects that on September 22, 2014, Complainant, a former Procurement Technician at the Agency's U.S. Army Corps of Engineers in New York, New York, initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.2 On January 13, 2015, Complainant filed a formal EEO complaint alleging that she was subjected to harassment and a hostile work environment on the bases of race/national origin (Hispanic), sex (female) and/or reprisal for prior EEO activity when: a. on May 28, 2014, the Deputy Commander signed a letter to have security remove her from the building because of allegations she had stolen a laptop and was a threat to government property; b. in January 2014, the Deputy Commander denied her the opportunity to be placed in the Leave Donation Program; c. in August 2013, the Deputy Commander disregarded her situation, excusing management's actions allowing her two supervisors to frame her in an attempt to have her fired without an official investigation or inquiry; d. on or about August 2013, the Deputy Commander stated that unless he witnesses abuse personally, there is no such abuse; e. the Deputy Commander upheld management's decision to deny her all forms of leave without cause or documentation; f. the Deputy Commander allowed management to charge her over 1,000 hours of Absent Without Leave (AWOL); g. the Deputy Commander verbally reprimanded her union representative for coming to her aid; h. the Deputy Commander ignored the Family Medical Leave Act violations committed against her; and i. the Deputy Commander would not answer her union grievance request for assistance. In its June 18, 2015 final decision, 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 also dismissed the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(4), on the grounds that Complainant first elected to file a grievance this matter in a grievance procedure that permits claims of discrimination. The instant appeal followed. In response to Complainant's appeal, the Agency, for the first time on appeal, argued that the instant complaint should also be dismissed on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). ANALYSIS AND FINDINGS Dismissal: Failure to State a Claim EEOC Regulation 29 C.F.R. §1614.107(a)(1) provides for the dismissal of a complaint which fails to state a claim within the meaning of 29 C.F.R. §1614.103. In order to establish standing initially under 29 C.F.R. §1614.103, a complainant must be either an employee or an applicant for employment of the agency against which the allegations of discrimination are raised. In addition, the claims must concern an employment policy or practice which affects the individual in his or her capacity as an employee or applicant for employment. 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; §1614.106(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). The Agency improperly fragmented the formal complaint, which in essence addresses an ongoing claim of discriminatory harassment. Specifically, Complainant alleged that she was subjected to a varied of incidents of harassment, from August 2013 through May 2014. Moreover, as a remedy, Complainant requested in pertinent part, that harassment cease. 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). 3 Dismissal: Raised in the Grievance Process EEOC Regulation 29 C.F.R. § 1614.301(a) states that when a person is employed by an agency subject to 5 U.S.C. § 7121(d) and is covered by a collective bargaining agreement that permits claims of discrimination to be raised in a negotiated grievance procedure, a person wishing to file a complaint or grievance on a matter of alleged employment discrimination must elect to raise the matter under either part 1614 or the negotiated grievance procedure, but not both. The record indicates that Complainant filed grievances on August 15, 2013, September 30, 2013, December 17, 2013, March 24, 2014, June 5 and 15, 2014 and July 21 and 23, 2014, on the same matters raised in her January 13, 2015 EEO complaint. In its brief submitted on appeal, the Agency asserts that its grievance process permits claims of discrimination to be raised in a grievance. In support of this claim, the Agency cites to the following language in its collective bargaining agreement concerning the grievance process: Article 5, Section 5 (a) Employees may grieve letters of reprimand or counseling and suspensions of fourteen (14) calendar days or less under the provisions of this Article. If the grievance involves an adverse action (removal, suspension of more than fourteen (14) calendar days, reduction in grade, reduction in pay, and furlough of thirty (30) calendar days or less), the employee has three avenues of recourse. The employee may 1) grieve the adverse action under this Article; 2) appeal the adverse action to the Merit Systems Protection Board; or file an EEO complaint (if appropriate). The employee may only elect one option. An employee will be deemed to have exercised his/her option when he/she files a timely grievance in writing or initiates an action under the applicable MSPB or EEOC procedure. We, however, do not find this language to clearly indicate that Complainant had the right to raise her claims of discrimination in her grievances. The language of Section 5.5 seems to concern only adverse actions involving "removal, suspension of more than fourteen days, reduction in grade or pay, and furlough of thirty days or less." We find that the claims raise by Complainant are not encompassed in the Agency actions expressly identified in Section 5.5. Therefore, given these circumstances, and in this particular instance, we determine that the Agency has not provided sufficient proof that its grievance process permitted the pursuit of claims of discrimination and required an election between filing a grievance or filing an EEO complaint. The Commission repeatedly stated that "the agency has the burden of providing evidence and/or proof to support its final decisions." Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993). Dismissal Grounds First Raised on Appeal: Untimely EEO Contact The Agency clearly had the opportunity to dismiss the formal complaint on the grounds of untimely EEO Counselor contact, in its final decision. The Agency did not do so. We will not entertain the possibility of this dismissal that was first raised on appeal. The Agency's final decision dismissing the formal complaint 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 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 (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 February 9, 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 The record reflects that during the relevant period, Complainant was removed from Agency employment. 3 We note, however, that to the extent that Complainant addresses matters relating to the FMLA process, such claims would fall under the regulatory ambit of the Department of Labor, not the Commission. Moreover, to the extent that Complainant addresses matters relating to the grievance process, Complainant should raise such concerns within the grievance process itself, and not through the EEO process. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120160524 7 0120160524