U.S. Equal Employment Opportunity Commission (E.E.O.C.) Office of Federal Operations * * * NIA G, COMPLAINANT, v. DR. DAVID J. SHULKIN, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, AGENCY. Appeal No. 0120170943 Agency No. 200906442016105162 June 23, 2017 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated December 16, 2016, dismissing her complaint alleging 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 Certified Respiratory Therapy Technician at the Agency's VAMC facility in Phoenix, Arizona. On October 15, 2016, Complainant filed a formal EEO complaint alleging that the Agency subjected her to hostile work environment and sexual harassment on the bases of race (African-American) and sex (female). The Agency indicated that Complainant identified three specific incidents: 1. On or about October 13, 2014, TB, a Respiratory Technician, yelled at Complainant and told her he would come over and do something to her. 2. On or about September 1, 2015, TB asked Complainant why she never wears a bra. 3. On or about July 14, 2016, TB called the Complainant "a smug bitch and racial nigger," told her that if she didn't wipe the smile off her face, he would wipe it off for her, and she later learned that he had a gun and said he would take her out.2 According to the EEO Counselor's report, Complainant also stated that TB "had a propensity for throwing objects and spitting food out of his mouth while raging," other female employees were afraid of TB, he had gotten into a physical fight with another employee, used foul language, and had a history of bullying females. On July 21, 2016, Complainant went to the police to obtain an order of protection against TB. The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. 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. The record discloses that the latest alleged discriminatory event occurred on July 14, 2016. The Agency states that Complainant did not initiate contact with an EEO counselor until September 4, 2016, which is beyond the forty-five (45) day limitation period. However, Complainant stated that she contacted a named EEO Manager on July 21, 2016, and discussed the matter with her. The EEO Manager purportedly told Complainant to make an appointment with an EEO counselor. The Agency asserts that when Complainant "sought assistance from the EEO office" in July 2016, she was presented with a document that explained that the EEO Manager was not an EEO counselor and that she needed to make contact with a counselor in order to pursue an EEO complaint. The Agency asserts Complainant did not contact an EEO counselor until September 4, 2016. We disagree with the Agency's dismissal of the complaint. It is undisputed that Complainant timely contacted someone logically connected to the EEO process -- the EEO Manager -- on July 21, 2016, about the matters raised in her complaint. The Commission consistently has held that a person may satisfy the requirement for timely EEO counseling contact by initiating contact with any 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 Hyman v. Dep't. of the Navy, EEOC Appeal No. 0120100060 (May 26, 2011); Martell v. Dep't. of Commerce, EEOC Appeal No. 0120110980 (Dec. 21, 2000); Lodge v. Social Security Administration, EEOC Appeal No. 0120110847 (May 12, 2011). As such, we find that Complainant timely initiated the EEO process. 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. Here, while not addressed by the Agency, we find that the three incidents alleged by Complainant, taken together with the other information in the related EEO counseling report, are sufficient to set forth a viable claim of harassment. Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED and the matter is REMANDED to the Agency for further processing pursuant to the following Order. ORDER (E1016) The Agency is ordered to process the remanded claims 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 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 (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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 Director Office of Federal Operations 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. Footnotes 2 Complainant alleged a coworker told her about TB's gun and his threat to use it on Complainant.