U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ernie S.,1 Complainant, v. Sean J. Stackley, Acting Secretary, Department of the Navy, Agency. Appeal No. 0120170661 Agency No. 16-00681-03557 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated December 1, 2016, dismissing his 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 worked as an Environmental Engineer at the Agency's facility in Camp Pendleton, California. On November 2, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination in reprisal for prior EEO activity. In its final decision, the Agency framed Complainant's claims in the following fashion: 1) [Complainant] alleges as an Environmental Engineer, GS-0819-13, Planning Branch, Pubic Works, Marine Corps Base Camp Pendleton, CA, [a named employee, (D1)], Director of Water Resources subjected [Complainant] to a hostile work environment because of reprisal...when on [February 4, 2014, he sent [Complainant] an email which stated [he] would no longer be the Contracting Officer's Representative (COR) [for named contracts] and [a named Agency employee] was appointed as the Deputy Director/General Manager of OWR/WRD.2 2) [D1] (who is not Complainant's supervisor) subjected Complainant to a hostile work environment because of reprisal when: (a) On [March 1, 2016], [D1] sent [Complainant] an email informing [Complainant] that he and his staff had received, understood and noted [Complainant's] comments on the Conjunctive Use Project (CUP); that the CUP had the highest levels of support, scrutiny, and professional expertise possible; that the team of experts is sensitized and capable of executing the project; that he is sure [Complainant's] supervisor will be grateful to have [his] time and professional expertise freed up to work on base planning tasks; and that further comments should be directed to him and not his staff. (b) On [June 15, 2016], [D1] responded to an email that [Complainant] had made comments on regarding an article about the base water resources program published in the Fallbrook Village News. [D1] stated that the Fallbrook Village News is not viewed as an authoritative source, that he is not concerned about the facts the author got wrong, that he was concerned by the author's fundamental lack of understanding in light of his experience with the Office of Water Resources, that [Complainant's] email comments about 'de factor IPR' were incorrect, that [his] other comments on the story were correct except for those regarding water purchases from South Coast, that [D1] had matters under control, and invited [Complainant] to discuss any concerns with him directly. (c) On [July 17, 20160, [D1] sent [complainant] an email which stated "while your lack of acceptance concerning my knowledge, skills, and abilities and qualifications is well known, I cannot have you sending mixed messages to our contractor regarding Camp Pendleton's level of knowledge about our hydrologic systems even "if they are couched as calls from a friend" and "if your intent was to illustrate my lack of competency, this has the opposite effect." (d) On [September 14, 2016], [D1] responded to an email [Complainant] sent by stating "if your goal is to convince me that you are more intelligent than me and/or a better engineer than me, stop. Find peace in your life. Enjoy this beautiful Base we work on." The Agency dismissed claim (1) for untimely EEO Counselor contact. The Agency reasoned that Complainant initiated EEO contact on September 15, 2016, beyond the limitation period for claim (1). The Agency dismissed the remainder of Complainant's complaint, claims 2(a)-2(d), for failure to state a claim reasoning that Complainant did not establish that he was aggrieved with respect to a term, condition, or privilege of employment. The instant appeal followed. On appeal, Complainant reasserts that he has been subjected to ongoing harassment by D1 since 2014. Complainant asserts that the Agency dismissed his complaint by fragmenting his ongoing retaliation claim. In response, the Agency requests that we affirm its final decision dismissing Complainant's complaint. The Agency asserts that Complainant is trying to save his complaint by framing it as a hostile work environment claim. The Agency states "[t]he simple fact that the acts may be interrelated or connected in some way will not toll the statute of limitations for filing a claim." ANALYSIS AND FINDINGS Dismissal of Claim (1) for Untimely EEO Counselor Contact We find that the Agency improperly dismissed claim (1) for untimely EEO Counselor contact. 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. 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. EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Upon review of the record, we find that the Agency improperly fragmented Complainant's hostile work environment claim. Complainant is alleging that he was subjected to an ongoing hostile work environment based on reprisal since 2014. 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 claims 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 (rev. July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)). The record reflects that at least one incident, incident 2(d), occurred within the 45-day time period preceding Complainant's September 15, 2016 EEO contact. Based on the foregoing, we find that Complainant timely initiated EEO contact with respect to his hostile work environment claim. Dismissal of Remainder of Complaint for Failure to State a Claim. The Agency improperly dismissed the remainder of Complainant's complaint, claims 2(a)-2(d), for failure to state a claim. As set forth above, the Agency improperly fragmented Complainant's ongoing hostile work environment claim. A review of the attachment to Complainant's formal complaint reflects that Complainant is alleging that D1 subjected him to various incidents (including incidents not referenced in the final agency decision), including, but not limited to: removing him from serving as COR for a specific contract, not being including in updates and reviews which were necessary for his role as COR, D1 contacting the Regional Contract Office in order for it to conduct an audit on Complainant's COR records in an effort to have Complainant terminated, D1 instructing Complainant to not contact his staff, and telling Complainant that he was sending mixed messages to contractors. Upon viewing these alleged incidents collectively, we find that these matters are sufficiently severe or pervasive to set forth an actionable claim of harassment. Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint and we REMAND this matter to the Agency for further processing in accordance with the Order below. 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, Director Office of Federal Operations March 29, 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 The claims are re-numbered herein for ease of reference. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120170661 6 0120170661