U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Theresa E.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency. Appeal No. 0120172207 Agency No. OCFO201700565 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision, dated May 5, 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 an Accounting Technician at the Agency's Office of the Chief Financial Officer facility in New Orleans, Louisiana. On May 2, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to ongoing discriminatory harassment on the basis of race (African-American). In her formal complaint, she provided the following examples of the harassment: 1. On March 22, 2017, she was told by the supervisor that she could not ask for assistance from other employees and that she had to ask the supervisor or another specified individual; and 2. On March 20, 2017, she and other African-American employees were assigned to sit near the supervisor. On May 5, 2017, 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 found that the allegations "are generalized complaints regarding the workplace" and that Complainant failed to allege a present harm or loss to a term, condition or privilege of employment. This appeal from Complainant followed. On appeal, Complainant stated that she did not include more incidents of alleged harassment because she was misinformed by the EEO Counselor who told her that her claim was too lengthy. She was told that she must keep it simple. The Agency did not file a brief in response to the appeal. 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). In this case, a fair reading of the complaint in conjunction with the related EEO counseling report shows that Complainant was alleging that she had been subjected to disparate treatment and harassment based on her race (African-American) in a series of related incidents that included, but was not limited to, the two incidents in her formal complaint as well as the following: On February 26, 2016, Complainant's supervisor told her to come only to her or another supervisor for help. She was instructed that she should not ask for help from other employees. On March 4, 2016, she was told not to complete her time on Fridays. She was told that she should complete it on Monday mornings. She was given a huge case that Complainant felt was not appropriate for her to be given. On Friday, April 1, 2016, she was told, while she was at lunch, that her supervisor wanted to see her after lunch. She also heard the supervisor talking out loud and thought the supervisor was disparaging her for something she had done wrong. The Caucasian person who trained Complainant told Complainant that the supervisor never gave similar instructions to the Caucasian employee and that she "had not done it the way" the supervisor was telling Complainant to perform the duty. On April 5, 2016, Complainant sent her supervisor a letter notifying the supervisor of Complainant's intent to pursue a transfer within the agency or to another agency. She told the supervisor that she believed she was working in a hostile environment and that it was physically and mentally debilitating to work under such conditions. Complainant told the supervisor that she loved serving the government, but it was in her best interest to do so in another department. Complainant was not granted a transfer. On February 23, 2017, during a teleconference, the supervisor made a statement which Complainant construed as a threat. The supervisor she stated, "we all need our jobs." On March 20, 2017, the supervisor initially assigned all African Americans to sit close to her. Caucasians were not restricted as to where they could sit. On March 23, 2017, a Caucasian employee told Complainant that the supervisor told her (Caucasian employee) that she could ask anyone for help and could also shadow another employee. Thereafter, Complainant filed this complaint. Complainant alleges that she was treated differently than the Caucasian employees. Based on this expanded view of Complainant's allegations, we find that she has alleged a viable claim of ongoing race-based harassment.2 As such, Complainant has sufficiently alleged an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). 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 (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 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 September 21, 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 Moreover, Complainant should be permitted, if she wishes, to amend the complaint to add retaliation as a basis as she has also alleged that that after she raised EEO concerns in April 2016, she requested, but was not granted, a transfer. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120172207 2 0120172207