U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Clinton M.,1 Complainant, v. Mark Green, Administrator, Agency for International Development, Agency. Appeal No. 0120162459 Hearing No. 570-2013-00466X Agency No. OCRD-12-007 DECISION Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency's final order concerning his equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission VACATES the Agency's final order. ISSUE PRESENTED The issues presented are: 1) Whether the EEOC Administrative Judge (AJ) properly dismissed Complainant's hostile work environment claim for untimely EEO Counselor contact; and 2) whether the AJ erred in granting summary judgment in the Agency's favor. BACKGROUND At the time of events giving rise to this complaint, Complainant was assigned to a detail with Office of Human Resources with the Agency's Office of Afghanistan and Pakistan Affairs (OAPA) in Washington, D.C. The Acting Director served as Complainant's first-level supervisor (S1) (female, African-American). Complainant was also supervised by the Chief of Staff, who served as his second level supervisor (S2) (male, African-American), and the Deputy Assistant Administrator, who served as Complainant's third-level supervisor (S3). According to Complainant, from August 2011 through October 2011, S1 constantly patted his buttocks and rubbed her body against him. Report of Investigation (ROI), Affidavit (Aff.) A, at 4-7. Complainant also averred that around October 28, 2011, S1 forced him to touch her breasts by grabbing his hands and placing them on her breasts in front of S2 and the Senior Office Manager. Id. Complainant also averred that S1 would address him as "Pepe" and "Ricky" and commented that she had never met a "gay Mexican," even though he is from Honduras. Id. Complainant further averred that S1 said to him that he needed her breasts to become a man again and a woman's breasts were what he had been missing and he knew it. Id. Complainant additionally attested that S1 asked questions about his shoe size, which she explained had a relationship to the size of his penis. Id. Complainant attested that S1 made it clear that she was attracted to him and made comments to him related to gender norms and stereotypes. Id. Complainant attested that he communicated to S1 and S2 that such behavior was not acceptable and constituted sexual harassment. Complainant stated that S1 then said to him that his being gay was a "waste of manhood" and that she could make him a man again. Id. Complainant also attested that he sent emails to S3 about issues that were affecting him regarding S1 and S2, but S3 never made himself available to speak with Complainant. Id. at 10. S1, however, denied touching Complainant or making any such comments towards Complainant. ROI, Aff. B., at 17-28. S2 also attested that he does not recall witnessing S1 touch Complainant or subject him to a sexual hostile work environment. ROI, Aff. C., at 3-5. S2 further attested that he does not recall Complainant advising him that S1 was subjecting him to sexual harassment. Id. at 5. S3 also averred that he was not aware of Complainant allegations of sexual harassment, and added that it is hard to believe that Complainant's allegations actually occurred. Id. at 4. However, the Senior Office Manager attested that she witnessed S1 spank and pinch Complainant on the buttocks on multiple occasions, and that Complainant would complain that he did not appreciate the touching. ROI, Aff. I, at 1-7. The Senior Manager also stated that S1 would make remarks to Complainant concerning the size of his private parts. Id. The Senior Office Manager further corroborated Complainant's allegations, attesting that she witnessed S1 place Complainant's hands on her breasts and say, "see what you have been missing?" Id. According to the Senior Office Manager, Complainant then expressed to S2 that he had been sexually harassed and asked what was going to be done about it, but S2 laughed. Id. The Senior Office Manager further corroborated Complainant's allegations that S1 had said to Complainant that he was a waste of a man and she could turn him around and make him a man again. Id. The Senior Officer Manager additionally stated that S1 would call him Ricky and Pepe and that he was the first gay Mexican that she had ever met even though he was not Mexican. Id. Complainant also averred that following October 28, 2011, S1 constantly spread rumors about him and commented that his "gay husband" made enough money to support him so he did not need his job. ROI, Aff. A, at 12. Complainant further attested that after S1 forced him to touch her breasts on October 28, 2011, she became hostile. Complainant specifically attested: [S1's] behavior toward me became hostile from that point forward. In addition to the hostile conduct discussed above, [S1] stopped inviting me to meetings and asked personnel to stop reporting to me in her absence, even [though] she knew that as [the] highest-ranked person in her absence, upper management directed all questions about absent personnel to me. Once [S1] stopped sharing information and directed employees to do the same, it compromised my ability to perform the essential functions of my job, which led to criticism from [S1] about my inability to accomplish tasks or to simply criticize me personally. Id. at 30. The Senior Office Manager moreover attested that that S1 had a file called "M and M" that contained information regarding Complainant and another employee in the hopes of getting rid of them. ROI, Aff. I, at 3. The Senior Manager further averred that she asked S1 why she wanted to get rid of Complainant and S1 stated that Complainant would be okay because he has a husband that has a lot of money. Id. The Senior Office Manager further attested that S1 directed employees to stop providing Complainant with information in order to prevent him from doing his job properly, and were instructed to watch their backs because Complainant was sneaky. Id. The Senior Manager further averred that S1 constantly criticized the Complainant's actions, performance, working hours, and time management. Id. On January 9, 2012, Complainant contacted an EEO Counselor and filed a formal EEO complaint on February 17, 2012, as amended, alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of national origin (Hispanic), sex (male), and reprisal for prior protected EEO activity when: 1. His supervisor made inappropriate comments of a sexual nature and touched him inappropriately; 2. Other management officials made frequent remarks about his sexuality; 3. His supervisor constantly criticized and badmouthed him to colleagues; 4. His supervisor made derogatory sex-based and gender stereotype comments to him; 5. He was forced to work long hours to complete work; 6. His supervisor launched a false Employee and Labor Relations (ELR) investigation against him and notified Senior Staff; and 7. In June 2012, the Agency suspended his "Secret" level security clearance.2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC AJ. Complainant timely requested a hearing. Over Complainant's objections, the assigned AJ granted the Agency's January 7, 2015, motion for a decision without a hearing. The Agency subsequently issued a final order implementing the AJ's finding that Complainant did not prove that the Agency subjected her to the alleged discrimination. The AJ initially found Complainant did not timely contact an EEO Counselor within the 45-day regulatory time limit with regard to his claim of a hostile work environment. The AJ noted that Complainant admitted that the sexual harassment ended on October 28, 2011, but he did not contact an EEO Counselor until January 9, 2012. The AJ further found that Complainant likely had reasonable suspicion of the harassment long before the end of October 2011, and therefore found that his claims of harassment were untimely. The AJ therefore dismissed Complainant's claims of a hostile work environment. CONTENTIONS ON APPEAL On appeal, Complainant, through his attorney, asserts that the AJ improperly dismissed his hostile work environment claims for untimely EEO Counselor contact. Complainant states that some of the incidents of harassment occurred within the 45-day limitation period, and the AJ therefore erred in failing to address his claims as part of continuing violation. Complainant states that the Commission has held that even if some incidents are individually untimely, they are still part of a claim of a hostile work environment so long as at least one incident that is part of the claim occurred within the filing period. Complainant therefore contends that that an agency cannot dismiss a complainant's continuing hostile work environment claim if at least one of the incidents of the pattern of harassment occurred within the 45-day limitation period. Complainant states that several of the alleged incidents of harassment occurred within the 45-day limitation period, including on November 25, 2011, and beyond. Complainant therefore asserts that the AJ erred in finding that the alleged harassment ended on October 28, 2011. In response, the Agency maintains that the harassment of Complainant ended on October 28, 2011, and the AJ therefore properly dismissed his claims of a hostile work environment for untimely EEO Counselor contact. ANALYSIS AND FINDINGS After a careful review of the record, the Commission finds that the AJ's decision to dismiss Complainant claims of harassment (claims 1 - 5) for untimely EEO counselor contact was an incorrect legal conclusion. We note that a hostile work environment claim is an amalgamation of incidents that "collectively constitute one unlawful employment practice." National Railroad Passenger Corp. v. Morgan, 536 U.S. at 117 (quotations omitted). Unlike discrete acts, the incidents that comprise a hostile work environment claim "cannot be said to occur on any particular day" and by their "very nature, involve repeated conduct." Id. at 115. Because a hostile work environment claim is comprised of various incidents, the entire claim is actionable if at least one incident occurred within the filing period. Id. at 117; see Hill v. Dept. of the Army, EEOC Appeal No. 01A60228 (Mar. 21, 2006) (noting that in the federal sector EEO process the Complainant must raise at least one incident of the claim to an EEO Counselor within 45-days of its occurrence). Upon review, we find that the AJ erred in finding that the alleged harassment ended on October 28, 2011, and his January 9, 2012, EEO Counselor contact therefore was untimely. In so finding, we note that Complainant alleged that the harassment by the same management official continued beyond October 28, 2011. We note that the Senior Office Manager corroborated Complainant's allegations that the harassment of Complainant by S1 continued indefinitely beyond October 28, 2011. We therefore find that Complainant's allegations of a hostile work environment are timely because he alleged that the harassment continued to occur well within the filing period. As noted above, the Commission has held that "[b]because 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." Morgan, 536 U.S. 101, 117. In the instant case, the AJ erred in addressing Complainant's claim of a hostile work environment in a piecemeal fashion. We therefore find that the AJ improperly dismissed Complainant's claim of a hostile work environment.3 Additionally, to avoid piecemeal processing of Complainant's complaint, we decline to address Complainant's claims regarding the ELR investigation and the suspension of his "Secret" level security clearance. These matters should be addressed at the hearing. CONCLUSION Based on the foregoing, the Commission finds that the AJ erred in dismissing Complainant's entire claim of a hostile work environment. Therefore, after a careful review of the record, including Complainant's arguments on appeal, the Agency's response, and arguments and evidence not specifically discussed in this decision, the Commission VACATES the Agency's final order and REMANDS the matter to the appropriate hearings unit for further proceedings as directed below. ORDER The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit of the Philadelphia District Office within fifteen (15) calendar days of the date this decision is issued. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 July 31, 2018 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 also claimed that he was subjected to discrimination when was placed on administrative leave pending the conclusion of the ELR investigation, and further claimed that he was constructively discharged on May 31, 2012, when he elected to resign. Complainant subsequently withdrew these claims. 3 We further note that the AJ committed legal error in finding that "Complainant has failed to establish a prima facie case of hostile work environment harassment regarding his allegations, as he has failed to timely seek EEO counseling." We note that contacting an EEO Counselor in timely fashion is not indicative of whether or not a complainant has established a prima facie case of a hostile work environment. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120162459 8 0120162459