U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Arlette W.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency. Appeal No. 0120162589 Agency No. AREUWIES16MAY01776 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision (FAD) dated June 30, 2016,2 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. 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 and that claims 5 through 15 were improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact. For the following reasons, the Agency's FAD is REVERSED and the complaint is REMANDED. ISSUE PRESENTED The issue presented is whether the Agency properly dismissed Complainant's complaint for failure to state a claim and/or for untimely EEO Counselor contact. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an IT Specialist at the Agency's 5th Signal Command facility in Wiesbaden, Germany. On June 15, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of national origin (Hispanic),3 sex (female), color (White), and reprisal for prior protected EEO activity when: 1. On May 2, 2016, Complainant was informed that the Command Judge Advocate (C1) and her immediate supervisor (S1) allegedly had the access to her work area removed; 2. On May 2, 2016, CPAC HR Specialist (H1) allegedly told S1 and senior leadership that Complainant lied when she said she went to Transportation on December 18, 2015; 3. On April 22, 2016, H1 allegedly discussed with C1, an Attorney Advisor (A1), the Deputy Division Chief (D1), and the Division Chief (D2), how to have Complainant fast tracked to another location, how to put her on the Family Leave Program (without pay), how to not allow Complainant to remain on the Voluntary Leave Donation Program (VLDP), and about resubmitting her Overseas Extension (OTEX); 4. On April 20, 2016, S1 questioned the validity of Complainant's telework; 5. From March 2-8, 2016, C1 allegedly sent Complainant a string of emails stating she was delinquent in filling out the OGE-450 Form (which was not a requirement of her job); 6. On March 4, 2016, H1 allegedly withheld the total number of hours that had been donated to Complainant under the VLDP; 7. On March 2, 2016, Complainant allegedly found out that the position that had been offered to her was being withdrawn due to reduction in force; 8. On February 1, 2016, H1 allegedly did not respond to Complainant's request for Workman's Comp registration; 9. From January 22-27, 2016, S1 requested information for Complainant's time and attendance; 10. On January 14, 2016, the Director of Wiesbaden CPAC (D3) allegedly told Complainant not to make any irrevocable actions until she heard back from him; however, it was too late as Complainant had already provided her landlord notice that she would be vacating the residence; 11. On January 6, 2016, H1 allegedly called Complainant's Senior Rater (S2) and told him that she was going to be placed on AWOL status by the gaining organization if she was not en route to DC and that she had lied about going to Transportation; 12. On November 24, 2015, C1 provided Complainant with a memorandum from the Commander of the 5th Signal Command in regards to the status of the AR 15-6; 13. On November 24, 2015, C1 allegedly told Complainant that she was a "real Mexican"; 14. From November 18-23, 2015, C1 allegedly sent an email to the 5th Signal Command and USAREUR stating Complainant had not completed the mandatory Ethics Training; and 15. On June 10, 2015, S1 allegedly did not provide Complainant with a mid-point evaluation for rating year 2015. On June 30, 2016, the Agency issued a final decision dismissing the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim, finding that the allegations were not sufficiently severe or pervasive to constitute a claim of harassment. The Agency also dismissed claims 5 through 15 pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the EEO Intake Specialist assigned to her case had a conflict of interest with C1 because they had a personal relationship. According to Complainant, she alleged an ongoing hostile work environment, so her complaint should not have been dismissed. Complainant requests that her complaint be remanded for an investigation. In response to Complainant's appeal, the Agency contends that Complainant's complaint was properly dismissed for failure to state a claim because the alleged harassment was neither severe nor pervasive and does not constitute a hostile work environment. The Agency requests that its final decision be affirmed. ANALYSIS AND FINDINGS Failure to State a Claim Complainant has shown an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that Agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, 1614.106(a). In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Thus, not all claims of harassment are actionable. As noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment.'" An examination of the Counselor's Report reveals that, despite noting, "Aggrieved's statement is attached," the EEO Counselor failed to attach Complainant's statement to the Counselor's Report. However, Complainant has alleged a hostile work environment. Among other allegations, Complainant alleges that a job offer was rescinded, her access to her work area was removed, her eligibility to telework was questioned, she was threatened with being charged AWOL, and she was denied a mid-point performance evaluation. When viewing these alleged incidents collectively, we find that these matters are sufficiently severe or pervasive to set forth an actionable hostile work environment claim. Further, as a remedy, Complainant requested that the harassment stop, that several of the named management officials be reprimanded, that she be relocated, and her sick and annual leave be restored. While each of the allegations by themselves may appear to concern relatively minor matters, given the breadth of Complainant's allegations, we find that, when considering the incidents together, she has asserted sufficiently pervasive harassment to state a cognizable claim under the EEOC regulations that requires further investigation and adjudication. See Cervantes v. U.S. Postal Serv., EEOC Request No. 05930303 (Nov. 12, 1993). Untimely EEO Counselor Contact The Agency also improperly dismissed claims 5 through 15 on the grounds of untimely EEO Counselor contact. Complainant initiated EEO Counselor contact on May 3, 2016. 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)). Various incidents comprising Complainant's hostile work environment claim occurred within the 45-day time period preceding Complainant's May 3, 2016 EEO Counselor contact, as discussed above. Because a fair reading of the record reflects that the matters identified in claims 5 through 15 are part of that harassment claim, we find that the Agency improperly dismissed these claims on the grounds of untimely EEO Counselor contact. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED. The complaint, defined herein as a harassment claim, is hereby REMANDED to the Agency for further processing in accordance with this decision and the ORDER below. ORDER (E1016) The Agency is ordered to process the remanded claims (harassment/hostile work environment) 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 1-5-2017 __________________ 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 presented evidence that the Agency's final decision was delivered on July 6, 2016, which makes her August 4, 2016, appeal timely. 3 Although Complainant designated her race as "Hispanic," the Commission recognizes this term as an indication of national origin rather than race. Accordingly, we will address her claim as involving an allegation of national origin discrimination. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2016-2589 6 0120162589