U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Agnus L.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency. Appeal No. 0120161698 Agency No. ARRILEY16FEB00343 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated March 24, 2016, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Human Resources Specialist at the Agency's Civilian Human Resources Agency, Southwest Regional Office in Fort Riley, Kansas. On February 3, 2016, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On March 11, 2016, Complainant filed the instant formal complaint. Therein, Complainant alleged that she was subjected to harassment and a hostile work environment on the bases of race, national origin, sex, and disability when: a. on December 14, 2015 and January 14, 2015, she was not promoted to the GS-11 level by her supervisor despite being promised said promotion within the first thirty (30) days of her initial hire on December 14, 2014; b. on September 20, 2015, her Family Medical Leave Act and Leave Without Pay requests due to pregnancy were not processed accurately by her supervisor; c. on nor about August 23, 2015, she was hospitalized, and her supervisor failed to provide the Civilian Personnel Advisory Center with her new address which caused her to have issues with her insurance; d. on May 14, 2015, her supervisor did not give her a "top block" on her mid-point evaluation; e. on May 13, 2015, her supervisor would not allow her to telework full-time; f. in April 2015, she was not provided proper reimbursement for temporary duty (TDY) travel necessary for training; g. on February 24, 2015, her supervisor talked down to her and wrote her a note saying "I assumed," explaining to Complainant she was making an ass out of herself; h. on unspecified date(s), she was called into her supervisor's office and he made her cry using harsh words; i. on unspecified date(s), her supervisor shared her personal information with other co-workers; j. on unspecified date(s), her supervisor gave her more work than her co-workers; k. on unspecified date(s), her supervisor would hold meetings with her co-workers but not with her and withheld information from her; l. on unspecified date(s), her supervisor failed to provide her with the requested medical accommodation(s) for her pregnancy; and m. on unspecified date(s), her supervisor would give her conflicting guidance. In its March 24, 2016 final decision, the Agency dismissed claims a - m on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on February 3, 2016, which it found to be beyond the 45-day limitation period. The Agency also dismissed claims b, c and f, pursuant to 29 C.F.R. § 1614.107(a)(5), on the grounds of mootness. Finally, the Agency dismissed claim d on the alternative grounds that it alleges a proposed action pursuant to 29 C.F.R. § 1614.107(a)(5).2 Complainant, on appeal, states that she is has been subjected to ongoing harassment and that her February 3, 2016 EEO contact was timely. Complainant states that she "made timely EEO in connection with her hostile work environment harassment claim when on February 3, 2016, she contacted [EEO Counselor] within 6 days from the latest incident, [supervisor's] January 28, 2016 determination that Appellant would not be promoted." Further, Complainant states that in regard to claim d, her supervisor's failure to provide her "the scores commensurate with her performance on her mid-term counseling report was another example of her hostile work environment claim, and accordingly, the action affected Appellant at the time of its occurrence. Notably, Appellant received her midterm review after she had already disclosed to [supervisor] that her IVF treatments resulted in her becoming pregnant and that it was a high-risk pregnancy." The instant appeal followed. ANALYSIS AND FINDINGS Untimely EEO Counselor contact (claims a - m) The Agency improperly dismissed claims a - m on the grounds of untimely EEO Counselor contact. The record reflects that Complainant initiated EEO Counselor contact on February 3, 2016. The Commission has held that "[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence." EEOC Compliance Manual, Section 2, Threshold Issues at 2 - 75 (revised July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)). The record reflects that various incidents comprising Complainant's hostile work environment claim occurred within the 45-day time period preceding Complainant's February 3, 2016 EEO Counselor contact, as discussed above. Because a fair reading of the record reflects that the matter identified in claims a - m is part of that harassment claim, we find that the Agency improperly dismissed these claims on the grounds of untimely EEO Counselor contact. Mootness (claims b, c and d) EEOC Regulation 29 C.F.R. § 1614.107(a)(5) provides that the Agency shall dismiss a complaint that is moot. To determine whether the issues raised in Complainant's complaint remain in dispute, it must be ascertained (1) if it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) if the interim relief or events have completely irrevocably eradicated the effects of the alleged violations. See County of Los Angeles v. Davis, 440 U.S. 625 (1979). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented. Complainant, on appeal, states that she is being subjected to ongoing harassment by Agency management. Therefore, we find that when viewing the subject claim in the context of the purportedly hostile work environment articulated by Complainant, the record does not support a determination that two prongs of the County of Los Angeles v. Davis test have been met. Complainant has specifically alleged that it is very likely that the alleged discriminatory harassment will continue to occur. Moreover, we note that in her formal complaint Complainant expressly sought compensatory damages as a remedy, her description of the alleged harm she has experienced as a result of the actions of Agency management could arguably construed as a request for compensatory damages, See Miller v. USPS, EEOC Appeal No. 01944372 (February 7, 1995) (finding that complainant's statement regarding physical and mental anguish to be sufficient to place the agency on notice that she may be seeking compensatory damages). On remand, therefore, the Agency is advised to further pursue whether Complainant's requested remedies encompass this matter. See Glover v. USPS, EEOC Appeal No. 01930696 (December 9, 1993). Alleging a Proposed action (claim d) The regulation set forth at 29 C.F.R. § 1614.107(a)(5) provides, in part, that the Agency shall dismiss a complaint that alleges a proposal to take a personnel action, or other preliminary step to taking a personnel action, is discriminatory. Complainant states on appeal, as well in the complaint documents, that she has been subjected to ongoing harassment. Given these circumstances, the Commission determines that claim d cannot be dismissed on the grounds that it is a proposed action. When a proposed Agency action is purportedly combined with other acts of harassment to form a pattern of alleged harassment, an agency may not properly dismiss it on the grounds that it alleges a proposed action is discriminatory. See Settles v. U.S. Postal Service, EEOC Request No. 05970496 (April 8, 1999). As such, we find that the dismissal of claim d for alleging a proposed action. We REVERSE the Agency's dismissal of claims a - m on the grounds of untimely EEO Counselor contact, claims b, c, and d on the alternative grounds of mootness, and claim e on the alternative grounds that it alleges a proposed action, defined herein as a harassment claim. We REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (E0610) The Agency is ordered to process the remanded claims (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 (M0610) 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 9-18 (November 9, 1999). 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 September 20, 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 the Agency inadvertently dismissed claim e in lieu of claim d. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120161698 2 0120161698