U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Myrtie P.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Bureau of Engraving and Printing), Agency. Appeal No. 0120172033 Agency No. BEP-17-0218-F DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated April 20, 2017, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Contract Specialist at the Agency's Bureau of Engraving and Printing facility in Washington, D.C. According to the Agency, on January 13, 2017, Complainant contacted an EEO Counselor alleging discrimination. The matter was not resolved informally. On March 28, 2017, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and age (40) when she was subjected to ongoing harassment. In support of her claim, Complainant indicated that the following events occurred: 1. On October 19, 2016, Complainant had a verbal altercation with her supervisor regarding a denial of training. 2. In August 2016, her supervisor attempted to hug and kiss her while congratulating her for receiving an award. 3. "Two years ago," her supervisor made comments in front of coworkers alluding to Complainant retiring soon. 4. In October 2015, Complainant had to take her certification classes over again because she was denied training multiple times. 5. In February 2014, Complainant has denied a promotion. 6. On December 16, 2016, a coworker aggressively bumped into Complainant in a hallway. 7. On March 10, 2017, the Agency's representative appeared at mediation without being fully informed of Complainant's allegations. The Agency issued a final decision on April 20, 2017, dismissing the complaint in its entirety. The Agency reasoned that allegations 1-5, concerning the actions of the supervisor, were untimely raised, noting the latest event occurred on October 19, 2016, but Complainant did not initiate contact with an EEO counselor until January 13, 2017, well beyond the 45-day limitation period. The Agency found that allegation 6 was distinct from allegations 1-5 as it was unrelated to the claims about the supervisor's actions. The Agency determined that, by itself, allegation 6 failed to state a viable claim of discrimination. Finally, the Agency dismissed allegation 7 for failure to state a claim as an event that occurred during a mediation session. This appeal followed. ANALYSIS AND FINDINGS Failure to State a Claim: Allegations 6 and 7 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, disabling condition, genetic information, or reprisal. 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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). As for allegation 7, we find that the Agency properly dismissed the instant issue. We note that Complainant alleged that she was subjected to discrimination when the Agency representative failed to come prepared for mediation. Complainant cannot bring a complaint regarding actions or statements made during mediation. See Nelson v. Dep't of Defense, EEOC Appeal No. 01A13907 (Sept. 25, 2001) (comments and actions made during a mediation session akin to actions during settlement negotiations). As such, we affirm the Agency's dismissal of allegation 7. We also find that allegation 6, concerning an incident with a coworker, is distinct from Complainant's allegations 1-5 concerning the actions of her supervisor. We agree with the Agency that Complainant has failed to state a viable hostile work environment claim with regard to the issue with the coworker as, even accepted as true, the incident would not be sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). Therefore, we find that the Agency properly dismissed allegations 6 and 7. Untimely EEO Counselor Contact: Allegations 1-5 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. §1614.105(a)(2) allows the Agency or the Commission to extend the time limit if 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. On appeal, Complainant asserts that the latest incident involving her supervisor occurred on October 19, 2016 (allegation 1). After the October 2016 altercation with her supervisor, she represents that she sent an email request for a meeting to a manager in the Agency's Office of Equal Opportunity and Diversity Management on November 16, 2016, prior to the expiration of the 45-day limitation period. She has provided a copy of her email confirming her November 16 contact. She also asserts that she was referred by that individual to a named EEO Specialist, and provides evidence that she received an email from that person on November 29, 2016, also within the limitation period. Based on this evidence, we conclude that Complainant made a timely contact with either an EEO counselor or a person logically connected to the EEO complaint process concerning her claim that she was being discriminatorily harassed by her supervisor. We note that the Supreme Court has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. EEOC Compliance Manual, Section 2, Threshold Issues at 2 - 75 (revised July 21, 2005) (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). Here, since Complainant made timely contact within 45 days of the October 19, 2016 incident, we find that the remaining allegations (1-5) she proffered in support of her claim of ongoing harassment by the supervisor are also timely made, and should not have been dismissed by the Agency. CONCLUSION Upon review of the record, we REVERSE the dismissal of Complainant's claim of ongoing discriminatory harassment by her supervisor (as evidenced by allegations 1-5) and REMAND the matter back to the Agency for further processing in accordance with the Order below. We AFFIRM the Agency's dismissal of allegations 6 and 7. ORDER (E1016) The Agency is ordered to process the remanded claim 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. If you file a request to reconsider and also file a civil action, 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 October 19, 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 0120172033 2 0120172033