U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zenia M,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120180229 Agency No. 1E-981-0032-17 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 18, 2017, dismissing her 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 At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency's Processing and Distribution Center facility in Seattle, Washington. On August 24, 2017, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the bases of race (Caucasian), sex (female), and color (White) when, for about one and a half years she was subjected to a hostile work environment by her Group Leader. In support of her claim, Complainant asserted that the following events occurred: * Complainant has been told by the Group Leader that he did not want females his pay location. * Complainant has been told by Group Leader that he did not like white people. * Complainant has been yelled at, cursed at, subjected to derogatory remarks, and belittled by the Group Leader. * Complainant has been called paleface, white bitch, and lazy by the Group Leader. * On March 18, 2017, the Group Leader assaulted her physically by pulling on her shirt from behind and pushing her forward to fall while in a truck at the workplace. * Complainant was retaliated against by being removed from her assigned work area to another work area after she complained of the hostile work environment, discrimination and assault imposed upon her. The Agency issued its final decision dismissing the complaint pursuant to 29 C.F.R. §1614.107(a)(2) finding that Complainant failed to raise her claim with the EEO Counselor within the 45-day time limit. The Agency determined that Complainant only alleged a single event in support of her claim of harassment. Specifically, the Agency found that Complainant alleged harassment when she was subjected to a physical assault by the Group Leader on March 18, 2017. Complainant did not contact the EEO Counselor until May 23, 2017, beyond the 45-day time limit. Further, the Agency dismissed the claim pursuant to 29 C.F.R. §1614.107(a)(1) for failure to state a claim. The Agency held that Complainant failed to provide what specific actions were taken against her. Therefore, the Agency dismissed the complaint as a whole on both grounds. Complainant appealed asserting that she alleged she was subjected to harassment starting with the physical attack on March 18, 2017. Following that incident, Complainant alleged she was subjected to additional events. Complainant indicated that she informed the Agency of these events in an amendment faxed to the EEO Counselor on June 22, 2017. Since the alleged assault, Complainant asserted that she has been left in the workplace fearing for her safety as the Agency has not addressed the situation. She also indicated that in her formal complaint, Complainant alleged several other events that happened within 45-days of contacting the EEO Counselor. The Agency failed to include these additional events when it dismissed her complaint. Further, Complainant argued that the EEO Counselor also limited the report to the single event rather than the series of events as part of a greater claim of harassment. 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, disabling condition, genetic information, or reprisal. 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. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). As an initial matter, we find that Complainant filed a formal complaint alleging that she was subjected to harassment based on race, color and sex. In her formal complaint, Complainant provided a list of events in support of her claim of harassment which occurred not only the March 18, 2017 incident, but also incidents of alleged harassment that occurred both before and afterwards. The Agency's final decision only referenced a single event which occurred on March 18, 2017. Upon review, we find that the Agency's final decision improperly limited Complainant's claim of harassment to one event. As such, we shall review Complainant's clam of harassment as stated in her formal complaint. The Commission has held that where, as here, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). We find that Complainant's allegations are sufficient to state a claim of a hostile work environment. Therefore, the Agency's dismissal of the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) was not appropriate. We now turn to the Agency's dismissal of the complaint pursuant to 29 C.F.R. § 1614.107(a)(2). EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105, §1614.106 and §1614.204(c), unless the Agency extends the time limits in accordance with §1614.604(c). EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to extend the time limit under appropriate circumstances. The Supreme Court of the United States 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, 117 (2002). Upon review of the record, Complainant asserted that the hostile work environment existed before the alleged incident on March 18, 2017, and has continued each day since. She further noted that she has been subjected to additional harassment since she contacted the EEO Counselor. Therefore, we find that Complainant has alleged events which have occurred within the 45-day time limit. As such, we find that the Agency has not supported its dismissal of the complaint pursuant to 29 C.F.R. § 1614.107(a)(2). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below. ORDER (E1016) The Agency is ordered to process the remanded claim (ongoing harassment) 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 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 January 9, 2018 __________________ 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 0120180229 2 0120180229