U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sana I,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120181177 Agency No. DON-17-00183-00063 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated December 15, 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 Cytology Technician, GS-646-06, at the Agency's Medical Center in Portsmouth, Virginia. On October 10, 2017, Complainant contacted the EEO Counselor alleging discrimination. On November 17, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), religion (Christian), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: A. She was subjected to harassment. In support of her claim of harassment, Complainant alleged that the following events: 1. From October 13, 2013 through April 15, 2014, Complainant was required to wear a face mask every day, all day while at work even though she worked alone and did not provide patient care. 2. On September 23, 2015, Complainant was asked questions regarding her physician and church by the Chaplain assigned to the Influenza Vaccination Exemption Committee (IVEC). Later, on or about October 13, 2105, during the appeal interview process, she was advised that she could provide additional information if she desired to do so. 3. On October 8, 2015, Complainant's request for a religious waiver from taking the influenza vaccination was denied by the Naval Medical Center, Portsmouth (NMCP) IVEC but later approved on October 13, 2015, after she filed an appeal. 4. On August 3, 2016, Complainant was advised to submit an updated request, and that if no request were submitted, she would be expected to receive the vaccination. 5. On August 24, 2017, Complainant was asked questions by an IVEC member regarding whether she eats the ingredients in the vaccination. 6. On September 21, 2017, Complainant's request for a religious waiver from taking the influenza vaccination was denied by the NMCP IVEC, and on October 4, 2017, her initial appeal of the decision was denied but later approved on November 2, 2017, after she contacted an EEO counselor and after the November 1, 2017 deadline to receive the vaccination without disciplinary action had passed. 7. On October 25, 2017, an EEO counselor advised her of an accommodation option offered by NMCP. 8. On November 2, 2017, she was advised that, although her appeal for a religious waiver had been approved by the IVEC, she would have to request an exemption annually. B. From October 13, 2013 through April 15, 2014, during the influenza season, she was required to wear a face mask, whereas a supervisor in a different division was not required to do so. The Agency dismissed the complaint as a whole. As for claims (A)(1) - (A)(5), the Agency determined that these matters should be dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) and (5) for stating the same claim in a prior EEO compliant which Complainant withdrew, and for mootness. In addition, the Agency dismissed claim (A)(6) pursuant to 29 C.F.R. § 1614.107(a)(1) and (5) for stating the same claim in a prior EEO compliant which was resolved on November 2, 2017, and for mootness. As for claims (A)(5), (7), and (8), the Agency determined that these issues should be dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Finally, the Agency dismissed claims (A)(2), (A)(4), and (B) pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact. This appeal followed. On appeal, Complainant indicated that she has been subjected to harassment every year she has requested a religious accommodation regarding the Agency's policy involving the influenza vaccination. She asserted that she has and will continue to have issues requesting an exemption to the policy based on her beliefs. As such, she asked that the Commission reverse the Agency's final decision dismissing her complaint. ANALYSIS AND FINDINGS Untimeliness - Claims (A)(2), (A)(4), and (B) 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 if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission. In her complaint, Complainant alleged a series of events which allegedly occurred from October 2013 through November 2017. Specifically, Complainant alleged that she was subjected to harassment which created a hostile work environment. Instead of treating these events as incidents of the claim of harassment, however, the Agency separated claim (B) from the other events alleged in support of her claim of harassment. Thus, we find that the Agency acted improperly by treating matters raised in Complainant's complaint in a piecemeal manner. See Meaney v. Dep't of the Treasury, EEOC Request No. 05940169 (Nov. 3, 1994) (an agency should not ignore the "pattern aspect" of a complainant's claims and define the issues in a piecemeal manner where an analogous theme unites the matter complained of). Consequently, when Complainant's claims are viewed in the context of Complainant's complaint of harassment. As such, we do not view claim (B) separate from the claim of harassment alleged by Complainant. We note that 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). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. The Court defined such "discrete discriminatory acts" to include acts such as termination, failure to promote, denial of transfer, or refusal to hire, acts that constitute separate actionable unlawful employment practices. Id. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id. As such, we find that Complainant alleged a timely claim of harassment. As such, the Agency's dismissal of claims (A)(2), (A)(4), and (B) was not appropriate. Same Claim - Claims (A)(1) - (A)(6) The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the Agency or Commission. We note that the Agency indicated that these claims had previously been alleged in prior EEO matters. However, the Agency provided no evidence to support its assertion. Thus, the Agency has failed to substantiate the bases for its final decision. See Marshall v. Dep't of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991). As such, we cannot find that the Agency's dismissal of claims (A)(1) - (A)(6) was appropriate. Failure to State a Claim/Mootness - Claims (A)(1) - (A)(8) The Agency also dismissed these events pursuant to 29 C.F.R. § 1614.107(a)(1) for 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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). As to the 29 C.F.R. § 1614.107(a)(1) dismissal, under Title VII, employers are required to accommodate the religious practices of their employees unless a requested accommodation is shown to impose an undue hardship. 42 U.S.C. § 2000e(j); 29 C.F.R. § 1605.2(b)(1). The traditional framework for establishing a prima facie case of discrimination based on religious accommodation requires a complainant to demonstrate that: (1) she has a bona fide religious belief, the practice of which conflicted with her employment, (2) she informed the agency of this belief and conflict, and (3) the agency nevertheless enforced its requirement against complainant. Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993); Turpen v. Missouri-Kansas-Texas R.R. Co., 736 F.2d 1022, 1026 (5th Cir. 1984). A review of the record shows that Complainant alleged that she had been subjected to a hostile work environment and denial of religious accommodation with regards to the Agency's policy as to the influenza vaccination. After a review of the Agency's final decision, the Commission finds that the Agency has addressed the merits of Complainant's complaint without a proper investigation as required by the regulations. The Agency asserted that her requests for religious accommodation were resolved in her favor. Such a determination goes to the merits of Complainant's complaint, and is irrelevant to the procedural issue of whether she has stated a justiciable claim under Title VII. See Osborne v. Dep't of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. U.S. Postal Serv., EEOC Request No. 05930220 (Aug. 12, 1993); Ferrazzoli v. U.S. Postal Serv., EEOC Request No. 05910642 (Aug. 15, 1991). As such, in the present case, Complainant claimed she was denied a religious accommodation and a hostile work environment. Such a denial and claim of harassment state viable claims to be reviewed on the merits. The Agency also stated that the claims were moot. The regulation set form at 29 C.F.R. § 1614.107(a)(5) provides for the dismissal of a complaint when the issues raised therein are moot. To determine whether the issues raised in complainant's complaint are moot, the factfinder must ascertain whether (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979), see also Kuo v. Dep't of the Navy, EEOC Request No. 05970343 (July 10, 1998). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented. Upon review of the record, we find that Complainant has not been provided with an assurance that here is no reasonable expectation that the alleged violation would recur as to her claim of denial of religious accommodation. Furthermore, there is no information in the record to establish that Complainant's claim of harassment is moot. Therefore, we find that the Agency's dismissal of the complaint was not appropriate on the grounds of failure to state a claim or of mootness. CONCLUSION The Agency's final decision is REVERSED and the complaint is REMANDED to the Agency for further processing in accordance with the Order herein. ORDER (E0618) 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. As provided in the statement entitled "Implementation of the Commission's Decision," the Agency must send to the Compliance Officer: 1) a copy of the Agency's letter of acknowledgment to Complainant, 2) a copy of the Agency's notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant's request for a hearing, a copy of complainant's request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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 June 29, 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 0120181177 8 0120181177