U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dudley H.,1 Complainant, v. Penny Pritzker, Secretary, Department of Commerce (Patent and Trademark Office), Agency. Appeal No. 0120162548 Agency No. 16-56-80 DECISION On August 1, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated June 30, 2016, dismissing her complaint of unlawful employment discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Patent Examiner at the Agency's facility in Alexandria, Virginia. On June 9, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal when: 1. On March 15, 2016, her supervisor threatened her with disciplinary action for not granting an attorney's interview request; 2. On March 18, 2016, she received a Letter of Reprimand by her supervisor for alleged improper conduct; and 3. On April 28, 2016, she received unwarranted criticism by her supervisor during her mid-year review. The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant did not engage in any prior equal employment opportunity (EEO) activity either by participation or opposition. In October 2015, Complainant filed a harassment claim with the Agency's Office of Human Resource (OHR). Therein, on October 20, 2016, Complainant wrote that "over the years, I have experienced unfriendly treatments due to my Supervisor's actions/inactions, if not discrimination." On January 20, 2016, the Office of the Chief Information Officer2 determined that Complainant did not specifically allege that the incidents cited or harassment occurred due to a statutorily protected basis, and hence no investigation was warranted. In the protected bases field in her report, the EEO counselor did not check off retaliation for prior EEO activity. Instead, she checked off "other" and wrote "Reprisal for prior harassment claim against [supervisor]." In the protected bases field in her EEO complaint, Complainant checked off "Retaliation" and wrote "please see attachment...." Therein, Complainant indicated that in October 2015, she filed a harassment claim against her supervisor with OHR, and on March 11, 2016, OHR found that her claim did not fall under a protected class. Complainant did not identify a protected class in her attachment. In its FAD, referring to the quotation "over the years, I have experienced unfriendly treatments due to my Supervisor's actions/inactions, if not discrimination," the Agency found that Complainant acknowledged that her prior harassment claim did not fall under a protected class. On appeal, Complainant controverts the Agency's finding that the above quotation is an affirmative statement that her harassment claim with OHR did not involve any EEO laws. She writes that the Agency ignored the word "if." Complainant contends that in 2015, she contacted the Agency's EEO office and reported discrimination against her. She writes that during this conversation, the EEO office clearly and firmly received her racial discrimination complaint. Complainant submits an October 16, 2015, email to her from the EEO counselor acknowledging Complainant's oral contact, and seeking to schedule an initial interview. Complainant writes that the EEO counselor advised her to contact OHR about her harassment claim. In opposition to the appeal the Agency argues that its FAD should be affirmed. It submits documentation from its electronic EEO database showing that on October 13, 2015, Complainant initiated EEO contact alleging discrimination, harassment, and an unfriendly work environment caused by her supervisor and Director, and withdrew the contact on October 27, 2015. No basis of discrimination is identified in the above documentation. The Agency argues that Complainant withdrew her contact before the EEO counselor had an opportunity to conduct an initial interview, and the EEO counselor did not contact Complainant's supervisor. Citing the above documentation, the Agency argues that Complainant did not reference discrimination on any protected basis in her 2015 EEO contact. It also argues that she failed to do so in her harassment claim with OHR and during the EEO process of her current complaint. ANALYSIS AND FINDINGS In light of Complainant's argument on appeal, we find that the Agency's finding that her retaliation claim does not state a claim as a matter of law because she admittedly did not engage in prior EEO activity goes to the merits of her complaint, not to whether it states a claim. Also, the question of whether management was aware of Complainant's prior alleged EEO activity goes to the merits of Complainant's complaint, not to whether it states a claim. Accordingly, the FAD is REVERSED. ORDER (E1016) 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 was issued. 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 was issued, 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's signature Carlton M. Hadden, Director Office of Federal Operations November 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 The record does not reflect if OHR is part of the Office of the Chief Information Officer. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120162548 2 0120162548