U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Joelle L.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Commissary Agency), Agency. Appeal No. 0120162275 Agency No. DECA000852016 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated May 16, 2016, 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 During the period at issue, Complainant was formerly employed as a Store Worker, WG-6914-04, at the Agency's Commissary in Kodiak, Alaska. On or about January 23, 2016, Complainant filed an appeal with the Merit Systems Protection Board (MSPB), regarding her January 23, 2016 termination. On January 25, 2016, the MSPB Administrative Judge (AJ) informed Complainant that the Board may not have jurisdiction over the matters raised in Complainant's appeal. On February 23, 2016, the MSPB AJ issued an initial decision dismissing Complainant's MSPB appeal for lack of jurisdiction. The MSPB AJ noted that the decision would be final on March 29, 2016, unless a petition for review was filed before that date. On March 17, 2016, Complainant initiated EEO Counselor contact with the Agency. Informal efforts to resolve her concerns were unsuccessful. On April 11, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment and discrimination on the bases of race, sex, and color when: 1. effective January 23, 2016, Complainant was terminated from her position as a Store Worker, WG-6914-04, during her probationary period; 2. on April 5, 2015 and September 5, 2015, Complainant had been subjected to inappropriate racial comments. Examples of such comments include the following: a. the Store Manager stated to Complainant "you cannot steal; you will be caught." Complainant realized the Store Manager assumed she was a thief because of the color of her skin; b. while filling out paperwork. Complainant alleges that the Store Director stated "I thought she was white" while speaking to the Store Manager on the phone; and, c. Complainant alleges the Store Director said "Barack Obama and blacks should not be allowed in the White House and blacks at the Kodiak Commissary should not be allowed in the front office of the Commissary." 3. on September 4, 2015, Complainant had been subjected to inappropriate sexual comments by the Store Director. Examples include the following: a. it's not my job to put things in holes; that's a man's job"; and, b. after Complainant asked for some batteries, the Store Director responded, "yes, I have a lot of batteries at home, but I use those for my dildos, so you may not want those." On May 16, 2016, the Agency issued its final decision. The Agency noted that following her termination, Complainant was given the choice of appealing her termination with the Merit Systems Protection Board (MSPB) within 30 days, or to file an Equal Employment Opportunity (EEO) complaint within 45 days. Complainant elected to file a MSPB appeal. The Agency stated that on January 25, 2016, the MSPB Administrative Judge (AJ) issued a jurisdiction order which explained that the Board may not have jurisdiction over the matters raised in Complainant's appeal. On February 23, 2016, the AJ dismissed Complainant's appeal for lack of jurisdiction. The Agency stated that based on the record, Complainant knew as early as January 25, 2016, that the MSPB might dismiss her appeal, and yet she waited until March 17, 2016 in order to contact the Agency's EEO office. The Agency determined that using Complainant's effective date of removal, January 23, 2016, she had until March 9, 2016, in order to timely contact an EEO Counselor. Therein, the Agency dismissed the formal complaint on the grounds of untimely EEO counselor contact, pursuant to 29 C.F.R. 1614.107(a)(2). ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. Moreover, 29 C.F.R. § 1614.302(b) states that if a person files a mixed case appeal with the MSPB and the appeal is dismissed for jurisdictional reasons, the agency shall promptly notify the individual in writing of the right to contact an EEO Counselor within 45 days of receipt of the notice; and the date on which the person filed his or her appeal with the MSPB shall be deemed the date of initial contact with an EEO Counselor. Bell v. Dep't of Defense, EEOC Request No. 05940741 (Jan. 6, 1995). A "mixed-case appeal" is an appeal with the MSPB that alleges that an Agency action was motivated by unlawful discrimination that violates EEO Regulations. 29 C.F.R. § 1614.302(a). Here, Complainant appealed her termination to the MSPB on or around January 23, 2016. Complainant's appeal was later dismissed for lack of jurisdiction; however, the Agency did not promptly notify Complainant in writing of her right to contact an EEO Counselor within 45 days of receipt of the notice. We deem Complainant's contact to the MSPB, on or about January 23, 2016, as the date of her initial EEO Counselor contact. Additionally, the Commission finds 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 at least of one of the incidents comprising Complainant's hostile work environment claim occurred within the 45-day time period preceding Complainant's January 23, 2016 EEO Counselor contact. Therefore, we find Complainant timely initiated EEO Counselor contact with respect to her harassment claim. Based on the foregoing, we find that the Agency improperly dismissed Complainant's claim for untimely EEO Counselor contact. 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 claims in accordance with 29 C.F.R. § 1614.108. 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. Hadden, Director Office of Federal Operations September 14, 2016 __________________ Date CERTIFICATE OF MAILING For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below: Brittany N. Smith 2304 Par Three Way Lithonia, GA 30038 Marcus G. Lashley, EEO Director Defense Commissary Agency 1300 E Ave. Ft. Lee, VA 23801-1800 __________________ Date ______________________________ Compliance and Control Division 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 0120162275 2 0120162275 7 0120162275