U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sharonda M.,1 Complainant, v. Rick Perry, Secretary, Department of Energy, Agency. Appeal No. 0120172120 Agency No. 170012SRO DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated April 26, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a General Engineer at the Agency's Savannah River Site (SRS) Operations Office Infrastructure and Area "Completion" Division facility in Aiken, South Carolina. On or around February 21, 2017, Complainant filed a formal complaint alleging that the Agency's EEO Director at the SRS site engaged in a pattern of interfering with her pursuant of her rights to utilize the EEO complaint process in violation of the anti-retaliation clause in Title VII. In effort of her claim, Complainant asserted the following events occurred: 1. On or around October 31, 2016, Complainant learned that the SRS EEO Director told a subordinate SRS EEO Specialist ("Specialist") that Complainant could not come into the SRS EEO Office to speak with or meet with the SRS EEO Specialist. 2. On or around October 31, 2016, Complainant learned that the SRS EEO Director told the Specialist that if the Specialist spoke with Complainant, the Specialist had to inform the EEO Director so that the EEO Director would be present during any conversation between the Specialist and Complainant. 3. On or around October 31, 2016, Complainant learned that the SRS EEO Director told the Specialist that Complainant could not utilize the spare EEO office to speak with an administrative judge and Agency counsel, with regard to two of Complainant's complaints which were at the hearing stage. 4. On or around October 31, 2016, Complainant learned that the EEO Director told the Specialist that she was "favoring" Complainant. 5. On November 22, 2016, a [named] Agency attorney sent a letter regarding the transmittal of the hearing transcript for Complainant's two pending hearings, even though the named attorney "should not have been involved in Complainant's cases, per the instructions of an administrative judge." The record before us includes a signed statement from the now-retired SRS EEO Specialist who confirmed that the incidents described in the allegations were true, and that she was a witness to the incidents which occurred in October and November 2016. Agency Decision The Agency issued a final decision dismissing the complaint pursuant to 29 C.F.R. § 1614.107(a) (1) for failure to state a claim. The Agency reasoned that claims 1, 2, 3 and 5 constituted spin-off complaints, as they allege dissatisfaction with the processing of Complainant's previously filed EEO complaints. Next, the Agency dismissed claim 4 for failure to state a claim, reasoning that Complainant did not allege that she suffered a harm or loss. The Agency stated that "one ambiguous stray remark, particularly one that Complainant did not hear firsthand, does not affect a term, condition, or privilege of employment, let alone one for which there is a remedy." The Agency dismissed the entire complaint. This appeal followed. ANALYSIS AND FINDINGS Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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, disability, genetic information, or retaliation. See 29 C.F.R. 1614.103(a) and 1614.106(a). The Commission has found that any action by an Agency manager that interferes with an employee's rights to pursue the EEO complaint process, or has the effect of intimidating or chilling the exercise of those rights under the EEO statutes, constitutes a violation of the statutory protection against retaliation. See Binseel v. Dep't of the Army, EEOC Request No. 05970584 (October 8, 1998); Yubuki v. Dep't of the Army, EEOC Request No. 05920778 (June 4, 1993); Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). Here, we understand the Agency's characterization of the individual incidents cited by Complainant as alleging dissatisfaction with the processing of prior complaints, which is usually subject to dismissal as an independent claim. However, a fair reading of the complaint shows that Complainant is alleging that she has been subjected to an ongoing series of related incidents of disparate treatment by the SRS EEO Director designed to interfere with her pursuit of her rights through the EEO complaint process, and deny her access to the EEO office, including its staff and other resources that are available to other SRS employees. In so alleging, we find that she has stated a viable claim of being denied benefits and privileges provided to other employees in violation of the anti-retaliation prohibition of Title VII. This claim should not have been dismissed, but needs to be investigated and further processed. After a review of the record, we find that this Title VII claim was improperly dismissed pursuant to 29 C.F.R. § 1614.107(a) (1) for failure to state a claim. CONCLUSION Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint. We REMAND the complaint to the Agency for further processing in accordance with this decision and the Order below. ORDER 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. In processing this complaint on remand, the Agency shall ensure that all steps are taken to prevent a conflict of interest, or even an appearance of such a conflict, with the SRS EEO office. 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 tends 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's signature Carlton M. Hadden, Director Office of Federal Operations November 7, 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 0120172120 2 0120172120