U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Greta F,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture, Agency. Appeal No. 0120181615 Agency No. AMS201800333 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated March 15, 2018, 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 During the period at issue, Complainant worked for the Agency as an Information Technology Specialist, GS-2210-11 in Washington, DC. On January 18, 2018, Complainant initiated EEO Counselor contact. Informal efforts at resolution were not successful. On March 8, 2018 Complainant filed the instant formal complaint. Complainant claimed that the Agency subjected her to discrimination based on sex and in reprisal for prior protected EEO activity. In its final decision, the Agency determined that the formal complaint was comprised of the following claims: 1. On October 24, 2017, Complainant was issued a "Fully Successful" Annual Performance Appraisal; 2. On December 28, 2017, management sent her emails that were characterized as disrespectful and unprofessional; and 3. On December 13, 2017, a management official commented that "he never seen anyone try to get in the casket with a dead person." On March 15, 2018, the Agency issued a final decision dismissing claim 1 for untimely EEO Counselor contact, in accordance with EEOC Regulation 29 C.F.R. § 1614.107(a)(2). The Agency determined that Complainant's EEO Counselor contact on January 18, 2018 concerning claim 1 was beyond the applicable time limitation for timely initiating EEO counseling. The Agency dismissed claims 2 and 3 in accordance with EEOC Regulation 29 C.F.R. §1614.107(a)(1) for failure to state a claim. The Agency determined that claims 2 and 3 failed to demonstrate that Complainant was harmed with respect to the terms and conditions of her employment. This appeal followed. On appeal, Complainant argues that the Agency did not properly identify her discrimination claims. Specifically, Complainant asserts that she suffered ongoing harassment at the hands of her first line supervisor beginning in 2014 after she filed an EEO complaint against him for alleged discriminatory conduct. Complainant further asserts on appeal that the alleged harassment has continued from 2014 to the present. ANALYSIS AND FINDINGS Dismissal for Untimely EEO Counselor Contact: Claim 1 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 claim 1 for untimely EEO Counselor contact. The record discloses that Complainant is alleging that she has been subjected to an ongoing hostile work environment including but not limited to receiving a lowered rating on her annual performance appraisal than previous years, being subjected to derogatory comments about women, rude and unprofessional behavior from her supervisor. Complainant further indicates that her supervisor accused of "throwing her co-workers under the bus" which Complainant contends has a negative impact upon her work environment. Complainant has alleged an ongoing hostile work environment that continued up through the date she sought EEO counseling. 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)). Dismissal for Failure to State a Claim: Claims 2 and 3 The Agency improperly dismissed the subject claims for failure to state a claim. As set forth above, Complainant is alleging an ongoing hostile work environment claim. 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. Thus, not all claims of harassment are actionable. In the instant matter, as noted above, Complainant is alleging that she was subjected to an ongoing hostile work environment when, among other things, her supervisor made derogatory comments to other co-workers and other managers about women, characterized Complainant to other management officials and co-workers as an "angry black woman." Complainant further alleges that her concerns regarding fairness in work assignments were ignored while those of male co-workers were taken seriously. Complainant asserts that her supervisor sent unprofessional emails to her and made derogatory remarks about women and Complainant. Complainant asserts that since the filing of an EEO complaint in 2014 naming her supervisor as the responsible management official, she has been subjected to hostile work environment harassment. Upon reviewing these alleged incidents collectively, we find that these matters are sufficiently severe or pervasive to set forth an actionable claim of harassment. We REVERSE the Agency's final decision dismissing Complainant's complaint and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. 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 July 3, 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 0120181615 6 0120181615