U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lisa Aki-Martin, a/k/a Mirtha H,1 Complainant, v. James N. Mattis, Secretary, Department of Defense, Agency. Appeal No. 0120180537 Agency No. 2017-DPAA-055 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated October 25, 2017, dismissing her 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 for the Agency as an International Travel Specialist at Joint Base Pearl Harbor in Hawaii. On September 29, 2017, Complainant filed a formal complaint. Complainant claimed that the Agency subjected her to discrimination based on disability and in reprisal for prior protected EEO activity. In its final decision, dated October 25, 2017, the Agency determined that the formal complaint was comprised of the following claims: 1. On June 23, 2017, Human Capital Division Chief [HC1] informed Complainant that she would be charged AWOL for June 12-13, 2017. 2. On March 10, 2017, Complainant's Volunteer Leave Transfer Program (VLTP) request was denied due to [HC1] previously placing Complainant on AWOL. 3. In January 2017, [HC1] and [a named Agency official] failed to address inappropriate behavior reported by Complainant. 4. From January 13 to February 27, 2017, Complainant was forced to use Leave Without Pay (LWOP) due to the denial of her reasonable accommodation request. 5. On January 13, 2017 [HC1] denied Complainant's reasonable accommodation. The Agency dismissed claim (1) for failure to state a claim. The Agency asserts that Complainant was never charged with AWOL for June 12-13, 2017, and therefore she was not subjected to a harm or loss with respect to a term, condition, or privilege of employment. The Agency dismissed the remainder of the formal complaint for untimely EEO Counselor contact. The instant appeal followed. On appeal, Complainant reiterates that she has been subjected to ongoing harassment which included being denied a reasonable accommodation and having to take LWOP, being denied the opportunity to participate in VLTP, and being informed that she would be charged with AWOL. ANALYSIS AND FINDINGS Dismissal for Untimely EEO Counselor Contact - Claims (2)-(5) 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. The Agency improperly dismissed incidents (2) -(5) for untimely EEO Counselor contact. As an initial matter, we find that Complainant is alleging on ongoing hostile work environment, including, but not limited to: being denied a reasonable accommodation, being placed on LWOP, being denied her request for the VLTP, and being informed that she would be charged with AWOL. 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 of 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 (rev. July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)). The record reflects that incident (1), HC1 allegedly informing Complainant that she would be charged with AWOL, occurred on June 23, 2017, the same day she initiated EEO contact. Thus, this incident is timely and therefore Complainant's entire hostile work environment claim is timely. Dismissal for Failure to State a Claim We find that the Agency improperly dismissed claim (1) for failure to state a claim. As set forth above, Complainant is alleging an ongoing hostile work environment. 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. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive:" and the complainant subjectively perceives it as such. Harris, supra at 21-22. Thus, not all claims of harassment are actionable. However, a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant cannot prove a set of facts in support of the claim which would entitle the 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 (March 13, 1997). The Agency asserts that Complainant was not actually charged AWOL for June 12-13, 2017, The issue, however, of whether or not Complainant was actually charged AWOL (and whether she was subjected to unlawful discrimination) goes to the merits of the complaint and should be determined subsequent to an investigation.2 In addition, we find that the Agency fragmented Complainant's hostile work environment claim, rather than viewing the incidents collectively in the light most favorable to Complainant. In the instant matter, Complainant is alleging a hostile work environment when including, but not limited to the following matters: she was denied a reasonable accommodation, placed on LWOP, denied her request for the VLTP, and informed that she would be charged with AWOL. Thus, we find that the alleged incidents when viewed collectively are sufficiently severe or pervasive to set forth an actionable claim of harassment. We REVERSE the Agency's final decision dismissing the formal complaint and we REMAND this matter, defined herein as a hostile work environment claim, to the Agency for further processing in accordance with the ORDER below. ORDER (E1016) The Agency is ordered to process the remanded claims (defined herein as hostile work environment 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. 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 February 7, 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 To the extent, Complainant may have only been informed by HC1 that she was being placed in an AWOL status rather than actually charged with AWOL, Complainant still sets forth an actionable claim of harassment when considering all the incidents collectively in the light most favorable to her. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120180537 6 0120180537