U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tiffanie S.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency. Appeal No. 0120162471 Agency No. FS201600354 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated June 28, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Geologist, GS-1350-11, at the Agency's facility in Tonasket, Washington. On January 26, 2016, Complainant initiated EEO counselor contact. Informal efforts to resolve her concerns were unsuccessful. On March 15, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment on the basis of reprisal for prior protected EEO activity. She provided the following examples in support of her claim: 1. on December 1, 2015, Complainant's first-level supervisor rated her a "Marginal" on her 2015 annual appraisal; 2. on October 23, 2015, Complainant's second-level supervisor denied her request for reassignment; 3. on September 2, 2015, Complainant was issued a Letter of Reprimand ; 4. on August 11, 2015, Complainant's first-level supervisor provided testimony in her previous EEO matter ; and, 5. on August 12, 2015, Complainant was subjected to harassment when her first-level supervisor interrupted a conference call that she was conducting, demanded that her mid-year review be completed that day, and belittled and berated her during said review. On June 28, 2016, the Agency issued the instant final decision. The Agency determined that Complainant had first contacted an EEO Counselor on January 26, 2016, beyond 45 days from the latest allegedly discriminatory event. The Agency determined that there was sufficient evidence that the Complainant knew, or reasonably should have known, of the 45-day time limit regarding EEO counseling. Specifically, Complainant was counseled in or around June 2015 to seek EEO counseling regarding certain incidents occurring during that time frame. Moreover, Complainant had previously taken the No FEAR Act training course regarding this topic and Complainant has previously filed at least four EEO complaints. The Agency dismissed the complaint grounds of untimely EEO counselor contact, pursuant to 29 C.F.R. 1614.107(a)(2). The instant appeal followed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires 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. A complainant satisfies the criterion of counselor contact by contacting an agency official logically connected with the EEO process, even if that official is not an EEO counselor, and by exhibiting an intent to begin the EEO process. See Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989); Dumaguindin v. Dept. of the Navy, EEOC Appeal No. 01954218 (April 1, 1996). In the instant complaint, Complainant has demonstrated that she contacted the EEO Investigator, and the EEO Specialist regarding the current complaint prior to January 2016. The record demonstrates that on July 27, 2015, Complainant sent correspondence to the EEO Investigator and an Agency employee stating that the following, "I am beginning to experience backlash from [the supervisor]. I need it to stop. I have the right to file an EEO suit without backlash on [the supervisor's part]." On same day, Complainant sent the same correspondence to the Agency's Civil Rights/Complaints Management EEO Specialist. The Supreme Court has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). Applying Morgan, 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). Various incidents comprising Complainant's ongoing hostile work environment claim occurred within the 45-day time period preceding Complainant's July 27, 2015 counselor contact. Because a fair reading of the record reflects that the other allegations identified are part of an ongoing harassment claim, we find that the Agency improperly dismissed these incidents on the grounds of untimely EEO counselor contact. CONCLUSION The Agency's final decision dismissing the formal complaint for failure to state a claim is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER (E0610) The Agency is ordered to process the remanded claim (ongoing retaliatory 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 (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 Carlton M. Hadden, Director Office of Federal Operations December 29, 2016 __________________ Date CERTIFICATE OF MAILING 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 0120162471 3 0120162471