U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Natalie S,1 Complainant, v. Eric D. Hargan, Acting Secretary, Department of Health and Human Services (Indian Health Service), Agency. Appeal No. 0120172617 Agency No. HHS-IHS-0290-2017 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated July 18, 2017, dismissing a formal complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a GS-11, Licensed Clinical Social Worker (LCSW) at the Agency's Quentin N. Burdick Memorial Health Care Facility in Belcourt, North Dakota. On June 2, 2017, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were not successful. On June 30, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to non-sexual harassment based on disability. On July 18, 2017, the Agency issued a final decision. The Agency determined that the formal complaint was comprised of the following two claims: 1. Since 2002, Complainant has had a heavy workload (which she describes as the work of two people), has been slow in getting promoted, and the Agency has been slow to make additions to the staff, which has caused her stress and resulted in negative impacts on her health; and 2. On May 3, 2017, Complainant was asked by her supervisor about her leave and how many clients she had scheduled. The Agency determined that Complainant did not contact the EEO counselor until June 2, 2017; it reasoned that Complainant's claims from 2002 until April 18, 2017, were untimely because of Complainant's failure to comply with 29 C.F.R. § 1614.105(a)(1)'s 45-day time limit for initiating contact with an EEO counselor. The Agency also dismissed the complaint for failure to state a claim under 29 C.F.R. § 1614.107(a)(1). Complainant contends that she was unaware of the 45-day time limit for initiating contact with the EEO Counselor until May 3, 2017. Complainant stated that she emailed her EEO pre-complaint form to the Agency's EEO Counselor timely on May 23, 2017. Additionally, on appeal, Complainant clarified her claims as age-based and ongoing in that she accused her current supervisor of creating a hostile environment in order to coerce Complainant to retire or quit, since 2002. ANALYSIS AND FINDINGS Upon review, the Commission finds that the Agency improperly dismissed Complainant's complaint. A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that a complainant cannot prove a set of facts in support of the claim which would entitle that complainant to relief. The trier of fact must consider all of the alleged harassing incidents and remarks, and considering them together in the light most favorable to the complainant, determine whether they are sufficient to state a claim. Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). In order to state a cognizable claim under EEOC's regulations, it is sufficient for a complainant to have alleged a pattern of harassment. See Cervantes v. U.S. Postal Serv., EEOC Request No. 05930303 (Nov. 12, 1993). The Agency mischaracterized Complainant's claims. A fair reading of Complainant's pre-complaint submission, formal complaint, and reinforced by assertions on appeal, show that Complainant has claimed a pattern of harassment that may have began in 2002 but has continued through the present. Complainant has alleged that this supervisor consistently denied leave and overtime, accused Complainant of going over her head to obtain a promotion, picked-on Complainant at meetings and assigned Complainant additional duties while demanding less work from other social workers. Complainant's allegations, when taken together and assumed to be true, sufficiently state a hostile work environment claim. See Estate of Routson v. Nat'l Aeronautics and Space Admin., EEOC Request No. 05970388 (Feb. 26, 1999). The record confirms that Agency's assertion that Complainant did not initiate contact with an EEO Counselor on these matters until June 2, 2017. However, 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 Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). As already noted, a fair reading of this complaint indicates that Complainant has alleged a pattern of ongoing harassment; the Agency acknowledged the allegedly discriminatory incident that occurred as recently as May 3, 2017. For these reasons, we find that the Agency erred in dismissing some matters on the grounds of untimely EEO Counselor contact. CONCLUSION We REVERSE the Agency's final decision dismissing Complainant's formal complaint, defined herein as a harassment claim and including age discrimination as an alleged basis, and we REMAND this matter 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 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 (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, Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). 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 (M0617) 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. 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 October 27, 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 0120172617