U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Breanna S,1 Complainant, v. Alex M. Azar II, Secretary, Department of Health and Human Services (Indian Health Service), Agency. Appeal No. 0120180601 Agency No. HHS-IHS-0402-2017 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated November 2, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Health Technician at the Agency's Chinle Comprehensive Health Care Facility in Chinle, Arizona. On July 18, 2017, Complainant initiated EEO contact. Informal efforts at resolution were unsuccessful. On September 18, 2017, Complainant filed a formal complaint. Complainant claimed that the Agency subjected her to discrimination based on race, national origin, and age when: 1. On June 22, 2017, a response was made to a Union representative on the scheduled Alternative Dispute Resolution (ADR) for Complainant and another employee that was scheduled without Complainant's knowledge and she declined participation and did not want to be bullied in to it. On April 20, 2017, there was an incident that Complainant states was being handled by the Union. Management directed Complainant to participate in ADR and Complainant declined. On July 18, 2017, the Division of Public Health Director hindered and obstructed of due process for the Union ADR that management directed Complainant to attend; and 2. On February 27, 2017, the Community Nutrition Supervisor informed Complainant that and staff that Health Technicians cannot have a Regular Day Off (RDO) and earn comp time or overtime as do the Registered Dietitians. On November 23, 2017, the Agency issued the instant final decision, dismissing the formal complaint. The Agency determined that Claim 1 failed to state a claim under 29 C.F.R § 1614.107(a)(1). The Agency dismissed Claim 2 under 29 C.F.R § 1614.107(a)(2) for untimely EEO Counselor contact. Specifically, with respect to the February 27, 2017 allegation, Complainant failed to contact an EEO Counselor within 45 days as required under 29 C.F.R § 1614.105(a)(2). According to the Agency, Complainant did not initiate EEO counselor contact until July 18, 2017. The instant appeal followed. Complainant's counsel argues that the Agency mischaracterized Claim 2 as a singular event. Complainant asserts, instead, that she had raised an ongoing pattern of discriminatory harassment because the Division of Public Health Director and the Community Nutrition Supervisor had a practice of granting RDOs, overtime, and comp time to Registered Dieticians who were non-Native Americans, while denying the same benefits to Complainant and the other Native American Health Technicians. Complainant's counsel argues further that Complainant was unaware of the 45-day time limit for initiating contact with the EEO Counselor. The Agency did not submit a response. ANALYSIS AND FINDINGS Claim 2 The Agency improperly dismissed Claim 2 regarding overtime, comp time and RDOs. On appeal, Complainant argued that she was unaware of the applicable time limits for EEO Counselor contact when, following a February 27, 2017 staff meeting, supervisory officials denied the Health Technicians' RDO requests and benefits of working additional hours commensurate with that of the Registered Dieticians. In accordance with 29 C.F.R. § 1614.105(a)(2), the Agency must extend the 45-day time limit in 29 C.F.R. § 1614.105(a)(1) because our thorough review of the record revealed nothing that would suggest that Complainant had either actual notice or constructive notice about the time limit for EEO Counselor contact. The Agency did not rebut Complainant's lack of knowledge of the regulatory time period. Additionally, we find that the Agency defined Claim 2 too narrowly, when limiting this matter to a single staff meeting held on February 27, 2017. According to her October 27, 2017 email to the EEO Counselor, Complainant she was subjected to an ongoing hostile environment where she feared that Agency management would revoke her RDO if she were to perform work towards comp time or overtime. Furthermore, Complainant sufficiently described this allegation as pattern or practice of harassment. See Cervantes v. U.S. Postal Serv., EEOC Request No. 05930303 (Nov. 12, 1993). Claim 2 was broadly based on a hostile environment, as such it "shall not be time-barred so long as all acts which constitute the claim are part of the same unlawful employment practice." Nat'l R.R. Corp. v. Morgan, 536 U.S. 101 at 127 (2002). We note that in an October 2017 email to the EEO Counselor, Complainant stated that she had later intimidating emails from Division of Public Health Director and the Community Nutrition Supervisor to support Claim 2. Claim 1 The Agency properly dismissed Claim 1 concerning her declining Agency management's invitations to participate in ADR because it failed to state a claim under the EEOC regulations. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Moreover, to the extent that Claim 1 involved the Agency's conduct in responding to her union grievance, we have consistently held that EEO complaints cannot be used to collaterally attack non-EEO processes. See Estrada v. Dep't of Agric., EEOC Appeal No. 0120071677 (May 17, 2007), Req. for Recons. Den., EEOC Request No. 0520070724 (Nov. 5, 2007). Finally, although we determined in our analysis of Claim 2 that Complainant raised a broad claim of a hostile environment, the matter raised in Claim 1 does not fall within the ambit of a hostile environment claim, and is not justiciable, for the reasons discussed above. CONCLUSION The Agency's decision dismissing Complainant's Claim 1 is AFFIRMED. However, we REVERSE the Agency's dismissal of Claim 2; we REMAND Claim 2, 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 claim (claim 2) in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to Complainant that it has received the remanded claim 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 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. If you file a request to reconsider and also file a civil action, 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, Director Office of Federal Operations February 16, 2018 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 6 0120180601