U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Crista H.,1 Complainant, v. Gina McCarthy, Administrator, Environmental Protection Agency, Agency. Appeal No. 0120161850 Agency No. 20150102R08 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated April 11, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Attorney in the Office of Enforcement, Compliance and Environmental Justice at the Agency's facility in Denver, Colorado. On August 11, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On October 26, 2015, Complainant received her performance evaluation from her supervisors, whom she had named as Responsible Management Officials (RMO). Complainant was rated 'Fully Successful.' On November 25, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of national origin, sex, religion, disability, age, and reprisal 2 when: 1. in April 2014, Complainant's previous first-level supervisor (hereinafter referred to as "RMO1") discredited Complainant in front of staff; 2. on November 18, 2014, Complainant was harassed in a meeting by a Department of Justice attorney in the presence of her management; 3. on December 6, 2014, Complainant's current first-level supervisor (hereinafter referred to as "RMO2"), threatened to charge her with insubordination if she did not agree with a workgroup decision on a penalty offer; and, 4. on January 27, 2015, Complainant was issued a two-day suspension by RMO2. We note that, in her formal complaint, Complainant also identified the latest incident of discrimination as having occurred in October 2015. However, in the formal complaint, Complainant does not address this discriminatory matter in any detail. On April 11, 2016, the Agency issued the instant final decision. The Agency determined that the allegedly discriminatory events occurring during April, November and December of 2014 and January 2015, but that Complainant did not contact an EEO Counselor until August 11, 2015. The Agency noted that this contact was well beyond the 45-day limitation period for initiating timely EEO Counselor contact. The Agency also found that Complainant had not provided any persuasive arguments for tolling the time limitation, and that Complainant did not dispute being aware of the 45 day time frame limitation. Therein, the Agency dismissed the entirety of the complaint on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). Additionally, the Agency also claims 1 - 3 for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1), finding that Complainant was not aggrieved. Additionally, the Agency stated that the incidents were not sufficiently severe or pervasive to state a claim of discriminatory harassment. The instant appeal followed. On appeal, Complainant, through her attorney, contends that the Agency erred in dismissing Complainant's complaint on the grounds of untimely counselor contact and failure to state a claim. Specifically, Complainant contends that she alleged an ongoing hostile environment, and that she explicitly identified in the formal complaint, "October 26, 2015" as the date of the most recent discriminatory action. Complainant contends that she also told the EEO Counselor about this action shortly after it occurred. Complainant contends that she provided the EEO Counselor with a chain of email correspondence reflecting her contemporaneous distress when her supervisors, RMO1 and RMO2, gave her a fully successful rating, which Complainant contends is a lower performance evaluation than she had ever received in her over twenty-five years of working for the Agency. Complainant contends that the October 26, 2015 incident demonstrates her claim of ongoing harassment and should make the entirety of her claims timely. ANALYSIS AND FINDINGS As a preliminary note, we determine that the Agency fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment by dismissing claims for failure to state a claim and untimely EEO counselor contact. A fair reading of her formal complaint, Complainant claimed that she was subjected to a series of related incidents of harassment from 2014 through to the present. The Agency improperly dismissed Complainant's complaint the grounds of untimely EEO Counselor contact. Complainant initiated EEO Counselor contact on August 11, 2015 for events occurring from April 2014 through to January 27, 2015, but also noted that the latest incident occurring on October 26, 2015. On appeal, Complainant details the October 26, 2015 incident, stating that she was given a lower rating performance evaluation than her previous 25 years at the Agency. 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)). Here, the October 26, 2015 event occurred after Complainant's August 11, 2015 EEO Counselor contact, and prior to her filing of her formal complaint. Because a fair reading of the record reflects that the matters identified are part of a harassment claim, we find that the Agency improperly dismissed Complainant's complaint on the grounds of untimely EEO Counselor contact. Moreover, as a timely raised claim can be reasonably construed as part of a larger, comprehensive harassment claim, the matters that purportedly occurred prior to the 45-day limitation period were not properly dismissed for failure to state a claim. By alleging a pattern of harassment, Complainant has stated a cognizable claim under the EEOC regulations for all claims raised in the formal complaint. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993). CONCLUSION We REVERSE the Agency's final decision dismissing the formal complaint, defined herein as a harassment claim, and 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 claim (harassment/hostile work environment/reasonable accommodation) 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 (M0416) 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. The requests 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 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. ignature Carlton M. Hadden, Director Office of Federal Operations August 2, 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 Complainant listed that she was retaliated against due to a conflict of interest and political affiliation. In its final decision, the Agency noted that discrimination based on an individual's political affiliation is not covered under statutes enforced by the Commission. However, because the Agency prohibits political affiliation discrimination pursuant to Executive Order 11478, as amended, it provided a separate complaint investigation and resolution process for Complainant. It noted that those claims were processed under the Agency's Order 1000.31A4, which parallels the process associated with claims falling within the Commission's jurisdiction. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120161850 2 0120161850