U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Renato K,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120171357 Agency No. 2004-0658-2017-100678 DECISION Complainant filed an appeal with this Commission from the Agency's final decision dated February 27, 2017, dismissing a formal complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405 (a). BACKGROUND During the period at issue, Complainant worked for the Agency as a Pharmacist in Salem, Virginia. On November 7, 2016, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. On January 23, 2017, Complainant filed a formal complaint. Complainant claimed that the Agency subjected him to hostile work environment harassment on the bases of disability and in reprisal for prior protected activity when: 1. On April 7, 2016, his request for reasonable accommodation was denied; 2. On June 7, 2016, Complainant was issued a proposed 30 day suspension reduced to 3 calendar days by letter dated August 3, 2016, for Conduct Unbecoming of a Federal Employee; and 3. On September 28, 2016, the Agency's Acting Medical Center Director denied Complainant's appeal of the proposed suspension. The Agency dismissed claim 1, that the Agency failed to accommodate his disability, on the grounds of untimely EEO Counselor contact, pursuant to EEOC Regulation 29 C.F.R. § 1614.107(a)(2). The Agency determined that Complainant's contact of an EEO Counselor on November 7, 2016 was beyond the applicable time limitations regarding his request for reasonable accommodation on April 1, 2016. Regarding Claim 2, Complainant addresses the Agency's issuance of a notice of proposed 30-day suspension on June 7, 2016. The record further indicates that on August 3, 2016, the Agency issued a letter to Complainant sustaining the suspension but mitigating to 3-calendar days to be served August 17 - 19, 2016. The Agency again determined that Complainant's EEO Counselor contact on November 7, 2016 regarding the August 2016 suspension was untimely. The Agency's August 3, 2016 letter referenced in Claim 2 also advised Complainant that within 30 days, he could appeal the decision to sustain the proposed suspension, through the Agency's negotiated grievance procedure. With the intention of appealing the Agency's suspension decision, Complainant's attorney mailed correspondence dated August 24, 2016 to the Agency arguing that the suspension was unwarranted and that it was based in part on a 2012 reprimand that was no longer reviewable. In its September 6, 2016 response to Complainant's attorney, the Agency advised that Complainant could only challenge the suspension through the Agency's negotiated grievance procedure as indicated in its suspension decision letter of August 3, 2016. Moreover, the Agency informed Complainant's attorney that only the Union could pursue a grievance on Complainant's behalf in accordance with its collective bargaining agreement with the Agency. In claim 3, Complainant alleges that in correspondence from the Agency dated September 28, 2016, the Agency denied his appeal of the proposed suspension identified in claim 2 because Complainant failed to pursue the negotiated grievance procedure within 30 days as indicated in its suspension decision letter and in its letter to Complainant's counsel on September 6, 2016. In its final decision, the Agency describes claim 3 as an improper attempt by Complainant to challenge the suspension outside of the grievance process which allows only Union representation. According to the Agency, because Complainant was previously advised of his rights regarding representation in the Agency's August 3, 2016 suspension decision, claim 3 fails to state a claim. The Agency determined that claim 3 fails to address a personal harm or loss to a term, condition or privilege of his employment. On appeal, Complainant's attorney argues that claim 3 was not untimely filed, noting that Complainant's EEO Counselor contact on November 7, 2016 regarding the Agency's September 28, 2016 denial of the appeal of his suspension, was within the applicable 45-day time limitation. We note here that the Agency correctly notes in its brief in opposition to Complainant's appeal that claim 3 was dismissed for its failure to state a claim and not because it was untimely. In addition, Complainant argues on appeal that the Agency's decision to suspend him along with its refusal to allow Complainant's attorney to pursue an appeal of the suspension on Complainant's behalf, constitutes harassment which is ongoing and retaliatory. The Agency requests that the Commission affirm its final decision. ANALYSIS AND FINDINGS Claim 1 EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105, §1614.106 and §1614.204(c), unless the Agency extends the time limits in accordance with §1614.604(c). EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to extend the time limit if the complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence Complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission. The Commission notes that the duty to reasonably accommodate is ongoing. Claim 1, that the Agency denied Complainant's request for reasonable accommodation, addresses an allegation of ongoing reasonable accommodation denial and should be construed as timely raised. See Complainant v. Dep't of Health and Human Serv., EEOC Appeal No. 0120130602 (Sept. 12, 2014) (agency improperly dismissed EEO complaint for untimely EEO Counselor contact when management continued to ignore complainant's requests for reasonable accommodation, which complainant asserted were still ongoing). The Commission has stated that because an employer has an ongoing obligation to provide a reasonable accommodation, failure to provide such accommodation constitutes a violation each time the employee needs it. See "Threshold Issues," EEOC Compliance Manual, at 2-IV (revised July 21, 2005). As such, at the time Complainant contacted the counselor, he was alleging that the Agency remained unwilling to provide him with the accommodations he still needed. We find therefore, that the Agency's dismissal of claim 1 as untimely was improper. Claim 2 As indicted above, 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 finds 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)). The record reflects that claim 2 of Complainant's hostile work environment claim, the August 2016 suspension occurred outside the forty-five day time period preceding Complainant's EEO Counselor contact. However, we find that claim 2 is like or related to claim 3, which was timely raised before the EEO Counselor. Specifically, we determine that both claims 2 and 3 address Agency management allegedly subjecting Complainant to a hostile work environment as evidenced by the denial of Complainant's accommodation request, the 30-day suspension and in claim 3, denying Complainant's attorney the right to appeal on Complainant's behalf as discussed below. We find therefore that the Agency's dismissal of claim 2 as untimely was improper. Claim 3 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, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). 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. In its final decision, the Agency argued that claim 3 was an improper attempt by Complainant to challenge the suspension with the assistance of private counsel outside of the grievance process which allows only Union representation. According to the Agency, because Complainant was previously advised of his rights regarding representation in the Agency's August 3, 2016 suspension decision, claim 3 fails to state a claim. We find that the Agency's argument regarding claim 3 goes to the merits of Complainant's claim as is irrelevant to the procedural issue of whether he has stated a justiciable claim under Title VII. . See Osborne v. Department of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United States Postal Service, EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642 (August 15, 1991). We find that the Agency improperly dismissed claim 3 for failure to state a claim pursuant to EEOC Regulation 29 C.F.R. § 1614.107(a)(1). Upon review, we find that the Agency improperly dismissed claims 3 for failure to state a claim. The evidence of record in this matter, including Complainant's statements on appeal, identify a series of harassing incidents occurring over 5 consecutive months that include as indicated above, the denial of Complainant's accommodation request, the 30-day suspension and denying Complainant's attorney the right to appeal on Complainant's behalf. Applying the above principles, and given the manner in which Complainant asserted that the denial of his reasonable accommodation request as well as the issues surrounding the 30-day suspension we find that the entire complaint states an actionable claim of hostile work environment harassment and was improperly dismissed. CONCLUSION Accordingly, we REVERSE the Agency's dismissal of claims 1, 2 and 3 defined herein as a harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (E0610) 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 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. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations May 31, 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 0120171357 7 0120171357