U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Milissa H.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency. Appeal No. 0120161158 Agency No. ARBELVOIR15APR01407 DECISION Complainant timely appealed to this Commission from the Agency's June 5, 2015 dismissal of 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., 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 Financial Adviser at the Agency's Soldiers and Family Assistance Center ("SFAC") in Fort Belvoir, Virginia. On April 22, 2015, Complainant initiated contact with an Agency EEO Counselor alleging she was being subjected to continued harassment in retaliation for prior protected EEO activity.2 During EEO counseling, Complainant provided the following three allegations as examples of the alleged ongoing retaliatory harassment: 1. on April 13, 2015 and ongoing, Complainant's co-worker who harassed her in August 2014 ("C1") continues to harass her by attempting to monitor her every move, in what Complainant believes to be an effort to harm her professional reputation; 2. on April 16, 2015, Complainant's supervisor ("S1") called her into her office and informed her that she and another employee had disturbed a third co-worker ("C2") so much that he was looking for another job; and 3. on April 17, 2015, Complainant heard C2 talking loudly and informed S1 and S1 did nothing about it. On June 3, 2015 Complainant filed her formal complaint on the matter. Complainant's formal complaint did not explicitly include the three allegations raised during counseling, but instead stated, "[t]his is continued harassment based on [her] original complaint filed in August of 2014 after being assaulted by a co-worker (kicked multiple times)" and alleging that: a. She continued to be harassed based on her original complaint filed in August of 2014 and Management's refusal to uphold the "zero tolerance policy". b. The EEO counseling report (on the instant complaint) contained false statements that Complainant was told she could not rebut. Specifically, Complainant alleged that the words of three (3) African American women (Complainant, S1, and a Coworker ("C3")) were ignored but the false statement of a white man was repeated as fact within the report. In its June 5, 2015 final decision, the Agency dismissed both claim (a) and (b), pursuant to 29 C.F.R. § 1614.107(a)(2), for raising matters that had not been brought to the attention of the EEO counselor and were not like or related to those matters raised during counseling. In addition, the two claims were alternatively dismissed, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The instant appeal followed. ANALYSIS AND FINDINGS Dismissal for Failure to Raise Claims During EEO Counseling EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint or portion thereof which raises a matter that has not been brought to the attention of an EEO Counselor, and is not "like or related" to a matter on which the complainant has received counseling. We find that the Agency erred in applying this dismissal basis. In order to clearly define the issues of a complaint, the Agency should not only look at a formal complaint but also consider its pre-complaint documents. See Tesoro v. United States Postal Serv., EEOC Appeal No. 0120113672 (Jan. 17, 2012); Jagdhane v. Gen. Serv. Admin., EEOC Appeal No. 0120110457 (Jan. 27, 2012). Here, a fair reading of the EEO counseling report, in conjunction with the formal complaint, reveals that the essence of Complainant's claim is she is being subjected to ongoing harassment in retaliation for her earlier complaint concerning, among other things, the "kicking incident" involving C1. Complainant has further alleged that S1 and management minimized the significance of the "kicking incident" by characterizing it as an accident, and contributed to the hostile environment and harassment by failing to fire C1 under the "zero tolerance policy" for workplace violence. She has asserted that, in particular, both S1 and C1 are engaged in a campaign to paint her in a bad light and make it appear that she is a trouble-maker. It is clear that the incidents Complainant raised during EEO counseling were examples of this ongoing pattern of alleged harassment. We find that claim (a) in Complainant's formal complaint addressed in more summary fashion the very claim of ongoing harassment that Complainant provided examples of during counseling. Therefore, we reverse the Agency's dismissal of the formal complaint as not being like or related to a matter raised in counseling. See EEOC Management Directive (MD)-110 Ch. 5 § IV(A)(1) (Aug. 5, 2015); see also Hurlocker v. Dep't of Veterans Affairs, EEOC Appeal No. 0120141346 (June 27, 2014), referencing Scher v. United States Postal Service, EEOC Request No. 05940702 (May 30, 1995). Dismissal for Failure to State a Claim - Claim (a) EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any aggrieved employee. 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Regarding Complainant's allegations of reprisal, we have found that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) Instead, claims based on statutory retaliation clauses are reviewed "with a broad view of coverage. Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter... complainant or others from engaging in protected activity." Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007) We reject the Agency's alternate dismissal for claim (a), failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency argues that even applying the "broader" standard of review reserved for complaints of reprisal, the alleged "continued harassment" and management's failure to uphold the "zero tolerance" policy, either do not threaten or inflict any actual harm, or concern harm that is merely speculative. Citing our decision in Gorrasi v. Nat'l Inst. Of Health and Human Service, EEOC Appeal No. 0120150744 (Apr. 17, 2015), the Agency concludes that the allegation in claim (a) is "unlikely to reasonably deter protected activity and does not state a viable claim retaliation." We disagree with this application because the Agency improperly failed to consider claim (a) within the context of an ongoing harassment complaint. The alleged speculative harm in Gorassi was a "more difficult work life" due to the removal of one of Complainant's staff, which Complainant expected would make it harder to meet her performance goals. We determined in that instance that Complainant suffered no present harm and the alleged future harm was speculative. Here, Complainant alleges present harm in the form of ongoing harassment, which she attributes to management's failure to implement the "zero tolerance" policy. Unlike Gorassi, which involved a single incident and addressed anticipated, rather than actual, harm, claim (a) alleges a present pattern of ongoing harassment and management's improper handling of the matter. When viewed within the context of a harassment complaint, claim (a) states a viable retaliation claim pursuant to 29 C.F.R. § 1614.107(a)(1), and should not have been dismissed. Dismissal for Failure to State a Claim - Claim (b) Here, in claim (b), Complainant has raised concerns with her inability to challenge the veracity of statements made by Agency employees in the EEO counseling report on the instant complaint.3 Allegations of dissatisfaction with an agency's processing of a previously filed or pending complaint cannot be the subject of an EEO complaint. See Morris v. Dep't of Def., EEOC Request No. 0520130316 (Aug. 27, 2013). It is EEOC policy that if a complainant is dissatisfied with the processing of her pending complaint, whether or not it alleges prohibited discrimination as a basis for dissatisfaction, she should be referred to the agency official responsible for the quality of complaints processing. Agency officials should earnestly attempt to resolve dissatisfaction with the complaints process as early and expeditiously as possible. The agency official responsible for the quality of complaints processing must add a record of the complainant's concerns and any actions the agency took to resolve the concerns, to the complaint file maintained on the underlying complaint. If no action was taken, the file must contain an explanation of the agency's reason(s) for not taking any action. A complainant must always raise her concerns first with the agency, in the above manner. However, in cases where the complainant's concerns have not been resolved informally with the agency, the complainant may present those concerns to the Commission at either of the following stages of processing: (1) where the complainant has requested a hearing, to the Commission's Administrative Judge when the complaint is under the jurisdiction of the Administrative Judge; or (2) where the complainant has not requested a hearing, to the Commission's Office of Federal Operations (OFO) on appeal. The complainant has the burden of showing improper processing. Claim (b) raises allegations of dissatisfaction regarding the processing of the instant complaint, specifically, alleged false statements in the EEO Counselor's Report and lack of opportunity for rebuttal. Moreover, Complainant raises these allegations prior to the investigative phase of processing. Claim (b) fails to state an independent claim of retaliation pursuant to 29 C.F.R. § 1614.107(a)(1), and its dismissal is affirmed. CONCLUSION The Agency's final decision dismissing claim (a) is REVERSED and the matter is hereby REMANDED to the Agency for processing in accordance with this Decision and the Order below. The dismissal of claim (b) is AFFIRMED. ORDER The Agency is ordered to process the remanded claim (ongoing retaliatory harassment) 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. If possible, the Agency shall consolidate claim (a) of the instant complaint with the processing of Agency No. ARBELVOIR15JAN00277, which was remanded for further processing by EEOC Appeal No. 0120151984 on January 29, 2016. 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 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 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 This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL 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 alterthe 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 May 18, 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 According to Complainant, the alleged retaliation arose from her prior EEO activity in August 2014, when she contacted an EEO counselor alleging discriminatory harassment on the bases of race (African American), age (over 40), and gender (female). The harassment claims primarily concerned Complainant's contentious working relationship with a coworker ("C1"), including what Complainant, management, and co-workers reference throughout the record as the "kicking incident." On or around July 17, 2014, during a staff meeting, C1 allegedly kicked Complainant under the table several times. After the "kicking incident" Complainant filed a police report, alleging she felt unsafe around C1 and that management failed to adequately respond. She then followed up with an August 2014 EEO complaint (Agency No. ARBELVOIR15JAN00277). In November 2014, Complainant amended her complaint to include additional claims of retaliation for her August 2014 EEO activity. On March 23, 2015, the Agency dismissed Complainant's complaint as untimely. Complainant appealed to this Commission, which then reversed the dismissal and ordered the Agency to investigate Complainant's claims. EEOC Appeal No. 0120151984 (Jan. 29, 2016). 3 We clarify for Complainant that the EEO counselor's report, which she claims contains false statements, is a preliminary inquiry to determine whether Complainant's allegations state a viable claim of discrimination that may be investigated. The Agency will notify Complainant when the formal investigation begins and she will have the opportunity to submit material for the record. Rather than informal phone interviews, witnesses will asked to provide sworn statements. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120161158