U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jene M,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 0120172088 Agency No. 2017-27292-FAA-02 DECISION Complainant filed an appeal with this Commission from the Agency's final decision dated May 15, 2017, dismissing a formal 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked for the Agency as a Contract Specialist at the Agency's Terminal Automation Modernization Replacement (TAMR) Program in Washington, DC. On February 14, 2017, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On March 29, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race, age, and in reprisal for prior protected activity On May 15, 2017, the Agency issued the instant final decision The Agency defined Complainant's claims as follows: A) On May 15, 2016, Complainant's manager told her he was sending her on a 14-week training program that would start around July 13, 2016, but until then, Complainant had nothing to do all day. Complainant declined the training, but her manager told her it was not optional; B) On May 15, 2016, Complainant's manager removed her as the Assistant Contracting Officer Representative (ACOR) for the TAMR Program, and no reason was given. Complainant's ACOR duties comprised about three-fourths of her day, but no other duties were assigned. C) On October 31, 2016, Complainant's manager provided her with a performance appraisal with new duties, but the manager did not provide Complainant any work. Regarding claims (A) and (B), the Agency found that Complainant had previously contacted an EEO Counselor on these same matters, in June 2016, under Agency No. 2016-26940-FAA.2 The Agency noted that Complainant had previously withdrawn claims (A) and (B) during the informal stage on August 26, 2016. Regarding claim (C), the Agency determined that the allegedly discriminatory event took place on October 31, 2016 but Complainant waited until February 14, 2017 to contact an EEO counselor. The Agency dismissed all three claims for untimely EEO Counselor contact pursuant to EEOC Regulations 29 C.F.R. §§ 1614.105(a)(1) and 1614.107(a)(2). Regarding claims (A) and (B), Complainant made the following statement in a chronological annotation of the pursuit of the EEO complaint process: "August 16, 2016 - decided to drop the EEO case because of the length of time, thought that writing to congressman would end the nightmare sooner." The instant appeal followed. On appeal, Complainant now asserts that claims (A) and (B) should be included because those incidents marked the start of the ongoing hostile work environment. Complainant further explained that any delay in initiating the EEO complaint process was due to her attempts to resolve matters through non-EEO avenues, including through her union, through her second-level supervisor, through the Merit Systems Protection Board, through the Agency's accountability board and through her congressional representative.3 As late as, January 24, 2017, Complainant had emailed management to complain that she lacked sufficient work, but her immediate supervisor only gave her two documents to proofread thereafter. ANALYSIS AND FINDINGS Claims (A) and (B) - ACOR Duty A withdrawn complaint is considered abandoned. Tellez v. Dep't of Transp., EEOC Request No. 05930805 (Feb. 25, 1994). Unless there is a showing of coercion or a settlement agreement, a withdrawn complaint cannot be reinstated. Allen v. Dep't of Def., EEOC Request No. 05940168 (May 25, 1995). See Horn v. Dep't of Veterans Affairs, EEOC Appeal No. 01A24946 (Jun. 26, 2003) (applying Tellez and Allen to a claim withdrawn during the informal processing stage.) Moreover, we cannot toll a complainant's time limit for contacting an EEO counselor while she availed herself of other non-EEO processes. EEOC does not toll time limits because a complainant has contacted an agency's internal affairs office, or because she contacted a union representative or a because she contacted a congressional representative. See McLoughlin v. Dep't of the Treasury, EEOC Appeal No. 01983943 (Apr. 24, 2003); Smith v. Dep't of Veterans Affairs, EEOC Appeal No. 01A01182 (Oct.11, 2000); and Placher v. U.S. Postal Serv., EEOC Appeal No. 01840535 (Apr. 9, 1985). In her own words, Complainant stated that she had decided to "drop" claims (A) and (B) on August 26, 2016, because she found the EEO process too slow and thought she could achieve a better result through her Congressional representative or other avenues. That she now regrets her voluntary action regarding these claims is insufficient to revive these matters in the EEO complaint process. We find that the Agency properly dismissed these two claim Claim C) -Work Denial In federal sector cases, where a complainant alleges a series of agency acts has created a hostile environment, the Commission considers such allegations a single claim of an unlawful employment practice. Thus, a pattern of harassment claim will be timely if it is initiated within 45 days of the last act contributing to the hostile environment. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). See also EEOC Compliance Manual, Section 2, Threshold Issues at 2 - 75 (revised July 21, 2005). Here, a fair reading of the record is that Complainant requested work from her supervisor on October 31, 2016 and again on January 24, 2017. According to Complainant during her appraisal on October 31, 2016, her supervisor clarified complainant's duties but declined to assign her work. Complainant stated that she languished at her desk over the next three months in spite of her effort to find assignments and offers to help coworkers. On January 24, 2017, Complainant emailed her supervisor to request work and received two documents to proofread. On appeal and in 2017 correspondence with the EEO Counselor she described her supervisor's withholding work (Claim C)) as a pattern of ongoing retaliatory harassment. On February 14, 2017, Complainant's wrote in a memorandum to the EEO counselor "I want to file a formal complaint with no mentation [sic]." We find that Complainant's EEO Counselor contact on that date was timely for purposes of 29 C.F.R. § 1614.105(a)(2). In sum, we find that the Agency improperly dismissed claim (C) for untimely EEO Counselor contact. Instead the Agency should address it as a pattern of harassment that began on October 31, 2017 and was ongoing after January 24, 2017. We remind the Agency, however, that in its investigation of claim (C), the prior two claims (A) and (B) which we discussed above, may be considered background evidence for the timely raised claim. See Ferguson v. Dep't of Justice, EEOC Request No. 05970792 (Mar. 30, 1999). CONCLUSION Regarding claims (A) and (B), we AFFIRM the Agency's decision to dismiss those claims. Regarding Claim C) we REVERSE the Agency's final decision dismissing this claim, defined herein as a harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (El016) The Agency is ordered to process the remanded harassment/hostile work environment (claim (C)) in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to 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 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, 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, 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 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 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 (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 September 12, 2017 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 prepared a statement wherein she made the following annotation: "May 15, 2016 - File EEO complaint. Case 2016-26940-FAA.: The May 15, 2016 reference, however, appears to be the date of the alleged discriminatory event, for which she sought EEO counseling in June 2016, as noted by the Agency. 3 According to Complainant, she had withdrawn her prior EEO Complaint in late August 2016 as noted in the above referenced annotation, and filed her congressional inquiry in October 2016. She received a response, dated November 2016, from her congressional representative that the Agency refused to respond because of Complainant's EEO complaints. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120172088