U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jeanie P.,1 Complainant, v. Sean J. Stackley, Acting Secretary, Department of the Navy, Agency. Appeal No. 0120172585 Agency No. 176339401294 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated June 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. BACKGROUND During the period at issue, Complainant worked as a Program Analyst at the Agency's Naval Surface Warfare Center in Port Hueneme, California. On February 17, 2017, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On May 15, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment and sexual harassment on the bases of race, sex, and in reprisal for prior protected EEO activity when: 1. in August or September 2016, the Division Manager told Complainant to sit next to him, pointing at his chair; 2. in August or September 2016, the Division Manager would follow Complainant around. He would look at her butt when she walked in front of him in the hallway, downstairs, or on the way out of the building; 3. around August 2016, the Division Manager was behind Complainant looking at her butt. Complainant stated "you scare me, you are so close to me. I didn't know you are after me." The Division Manager was upset and replied "you mean I am behind you"; 4. on November 28, 2016, the Division Manager came down stairs after Complainant. He was about 10 feet away from Complainant looking at her butt; 5. on Christmas Eve, 2016, the Division Manager was sitting on top of a desk looking over the cubicle wall at Complainant as she walked by; 6. on or around November 17, 2016, the Division Manager did not speak to Complainant for four months, but he would say "good morning" and "good night" to a contractor employee (employed by contracting company, hereinafter referred to as "CW1") who worked in the same area; 7. on December 1, 2016, the Division Manager told Complainant to sit down on his chair while she searched for a website on the computer. Complainant sat down and could feel that he was looking at her from head to toe; 8. on December 2, 2016, during the department Christmas party Complainant passed the Division Manager and he suddenly pushed his body against hers. Complainant observed that the Division Manager's wife was angry at her when she saw her husband following Complainant around at the party; 9. on or around August 2016, CW1 told Complainant, "You got this job because you are a military spouse;" 10. on August 1, 2016, CW1 rudely asked Complainant "can I get you to move" meaning move out of her way. CW1 gave Complainant a dirty look when she reported it to her supervisor; 11. on or around August 1, 2017, CW1 had a lot of loud and disruptive visitors in her cubicle. Complainant made a request to her supervisor to be moved; 12. in November 2016, the Division Manager moved CW1's office area back into the cubicle area next to Complainant; 13. in the end of September 2016, CW1 threw tantrums by slamming items on her desk in an aggressive manner. She made comments in an attempt to belittle and intimidate Complainant, "You are a military spouse-. I am just a contractor they moved me because I am a contractor, [the Division Manager] wants me to sit here, [the Division Manager] said that he needs me to be close to him"; 14. in November 2016, CW1 walked in and out of the Division Manager's office talking loud, being rude, disrespectful, disruptive and obnoxious acting as if she is superior to Complainant; 15. on November 17, 2016, after Complainant was unable to send the Division Manager a report, he slammed the door when she passed by his office; 16. on November 17 and 18, 2016, Complainant asked the Supervisor to relocate her to another office; however, an agreement between the Division Manager and the Supervisor was made for CW1 not to talk with Complainant; 17. on December 9, 2016, CW1 accused Complainant of talking her earphones; 18. on December 15, 2016, Complainant informed the Supervisor, the Team Lead, and the Division Manager that CW1 continues to talk to her, accuse her of taking the earphones, dismisses her help, and is loud and obnoxious on the phone. The Division Manager replied by justifying, defending, and making excuses for CW1; 19. on December 23, 2016, CW1 came to Complainant's desk to comment about her husband "too bad that you guys are not connected. I mean you are not physically connected;" 20. on December 23, 2016, the Division Manager gave CW1 59 minutes to leave early as she is favored by the Division Manager; 21. on December 20-30, 2016, Complainant saw CW1 leave work around 12:30p.m. as she favored by the Division Manager; 22. on December 22, 2016, CW1 got up from her desk and tried to follow Complainant; 23. on January 5, 2017, the Supervisor informed Complainant that the Division Manager was going to move CW1's office area to the first floor; however, the Division Manager put CW1's work area on the second floor near Complainant. Complainant heard CW1's screaming at the Division Manager "I will make sure everybody is happy, ok! Ok!"; 24. on or around January 2017, the Supervisor informed Complainant that it was the Division Manager who requested she sit near his office to support code L50. The Division Manager allowed CW1 to walk by Complainant's cubicle, make eye contact, and give hostile looks when there was no reason for her to be in that work area; 25. on February 9, 2017, CW1 was in the Division Manager's office talking loudly in a super happily friendly tone to show Complainant that they are friends. Later that day CW1 and the Division Manager were whispering in a super sweet tone as if they were happy and romantic; 26. at the end of January 2017, Complainant overheard the Division Manager talking to a secretary in a very sexual tone; 27. on January 13, 2017, the Division Manager saw Complainant and a co-worker and stopped her to ask "do you need to see me?"; 28. on or around January 2017, the Division Manager was in a meeting in his office and made sure Complainant heard his loud voice calling "[CW1, CW1, CW1]"; 29. in January 2017, the Division Manager's intentional loud voice and melodramatic behavior was disturbing to Complainant; 30. on or around January 30, 2017, the Building Coordinator, came to Complainant 's office to discuss raising the cubical wall of her office. The Division Manager heard the discussion and became furious. The Division Manager brought CW1 to the office area and they began yelling at each other to make sure Complainant heard them; 31. in January 2017, the Division Manager became angry when he overheard Complainant state the Supervisor was her supervisor. The Division Manager walked to Complainant cubical and shouted "that's wrong!" The Division Manager was furious that Complainant did not say he was her supervisor; 32. around Christmas 2016, the Division Manager and another manager stopped adjacent to Complainant's cubical. Complainant overheard the Division Manager saying "he is an Indian. How is his English? Does he speak English?" Complainant was insulted; 33. on January 24, 2017, Complainant briefed the Division Manager on the branch analysis spreadsheet during a staff meeting. The Division Manager was rude and interrupted Complainant and told her to leave. After the staff meeting, the Division Manager walked to Complainant's cubicle and loudly stated "[CW1], [CW1] is our Division Analyst." Complainant was insulted, because she was the Division Program Analyst; 34. on February 8, 2017, the Division Manager became angry with Complainant because she had no authority to procur funds that are not appropriate for a contract. When Complainant was able to get the necessary funds, the Division Manager slammed the door to his office; 35. on February 8, 2017, the Division Manager allowed CW1 to walk by Complainant's desk and look into her cubicle to ensure Complainant knew she was there; 36. on February 8, 2017, Complainant returned from a meeting and found the Division Manager anxiously pacing in a circle next to her cubicle. He glared at Complainant after hearing her conversation with the Supervisor; 37. on February 13, 2017, the Division Manager became angry when Complainant informed him that the Team Lead and she would meet the following day to discuss the branch analysis report. Complainant was uncomfortable meeting with the Division Manager alone; 38. on February 14, 2017, the Team Lead requested to reschedule the meeting with the Division Manager. He insisted that he be present with Complainant. The Division Manager became angry, slammed the door to his office, and cancelled the meeting; 39. on February 15, 2017, the Division Manager and CW1 walked by Complainant to get her attention. The Division Manager and CW1 turned their head towards Complainant, made eye contact, glared at her, and talked loudly as they walked in front of her; 40. since February 21, 2017, the Division Manager continues to walk in front of Complainant new work area talking very loud in an intimidating tone/exaggerated voice to get her attention. CW1 also walks around Complainant work area and gives her hostile looks; 41. on April 7, 2017, the Division Manager was talking loudly to get Complainant's attention. He wanted to let her know he was in her work area as he waited for a meeting; 42. on or around January/February 2017, Complainant observed the Division Manager talking to the Secretary in a sexually toned voice; and, 43. on April 28, 2017, Complainant heard the Division Manager and the Department Manager talking. The Division Manager replied in a loud angry threatening voice to him "Okay, will do;" On June 15, 2017, the Agency issued the instant final decision. The Agency dismissed Claims 1 to 22, and 32 on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. 1614.107(a)(2). The Agency dismissed Claims 23 to 31, and 33 to 43, pursuant to 29 C.F.R. § 1614.107(a)(1). The instant appeal followed. ANALYSIS AND FINDINGS Failure to State a Claim 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). Here, Complainant has raised a clear claim of ongoing retaliatory harassment by the Supervisor, and the Division Manager. Complainant contends that she was subject to constant sexual and nonsexual harassment. The Agency, in its dismissal fragmented Complainant's claim into the various incidents she proffered in support of that claim, dismissing each of the various incidents for different reasons. However, a fair reading of Complainant's formal complaint, the related EEO counseling report, and the subsequent clarifying correspondence, makes it clear that Complainant has raised a single legal claim - ongoing harassment. 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. We find that in the instant case, viewing the allegations together and in the light most favorable to Complainant, she has stated a viable claim of a hostile work environment. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993). Untimely EEO Counselor Contact 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. Regarding the timeliness of Complainant's initial EEO Counselor contact, several of the incidents proffered in support of her harassment claim occurred within the 45-day limitation period (e.g. January, February and April 2017 incidents). 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. See National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). Applying Morgan, the Commission has held 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). Various incidents comprising Complainant's hostile work environment claim occurred within the 45-day time period preceding Complainant's February 17, 2017 EEO Counselor contact. Because a fair reading of the record reflects that the other allegation identified are part of an ongoing harassment claim, we find that the Agency improperly dismissed these incidents on the grounds of untimely EEO counselor contact. CONCLUSION The Agency's final decision dismissing the formal complaint for failure to state a claim and untimely EEO Counselor contact is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER (E1016) 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 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 (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. Carlton M. Hadden, Director Office of Federal Operations October 11, 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 0120172585 9 0120172585 10 0120172585