U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Annice N.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency. Appeal No. 0120182060 Agency No. 18017 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated April 30, 2018, 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 Shift Supervisor at the Agency's Ft. Riley Exchange facility in Ft. Riley, Kansas. On February 23, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of color, age, and reprisal for prior protected EEO. As summarized by the Agency, the formal complaint was comprised of the following claim: a) Complainant was discriminated against because of her age and color when: 1. on December 13, 2017, Complainant's Sales and Merchandise Manager (M1) and other Agency managers made her feel ambushed in a meeting about an issue Complainant brought up with a customer which led to Complainant being told about her deficiencies instead of hearing her concerns; 2. on December 20, 2017, M1 badgered Complainant about new procedures M1 wanted done on the new PC operating system and stated that it would be up to M1 to evaluate over the next thirty (30) days whose hours would be cut or let go based on performance productivity; and b) Complainant was subjected to reprisal for having participated in prior EEO activity when on January 31, 2018 and February 22, 2018, Complainant was issued communication entries on her Army & Air Force Exchange Service (AAFES) Supervisor/Employee Communications Record. On March 6, 2018, the Agency sent Complainant a Notice of Intent to Dismiss Discrimination letter requesting that Complainant clarify the harm that was caused when she was allegedly discriminated on December 13, 2017, December 20, 2017, January 31, 2018, and February 22, 2018. On March 16, 2018, Complainant, through her attorney, responded to the Agency's March 6, 2017 letter stating that (1) management "scrutinized" Complainant by requiring that only Complainant submit daily task lists every day - a process that had a negative impact upon Complainant's employment; (2) management required only Complainant to follow new computer procedures; (3) management disciplined Complainant for communication and for including an incorrect phone number on a contract, but management did not discipline another employee for a similar error; and (4) Complainant was severely affected by the January 31, 2018 and February 22, 2018 incidents and was in the hospital ICU for four days. In its final decision dated April 30, 2018, the Agency dismissed the formal complaint for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1), finding that Complainant's complaint involved "common workplace occurrences, dissatisfaction with management style and/or disagreement with a supervisor/management's decision regarding who to conduct day-to-day operations," and these incidents were not sufficiently severe or pervasive set forth an actionable claim of harassment. The instant appeal followed. Complainant, on appeal and through her attorney, argues that she was subjected to continuous harassment, reprisal, hostile work environment and disparate treatment which resulted in her loss of work hours and limited her ability to compete for upward promotion. The Agency, on appeal, reiterates its arguments stated in its final decision. Specifically, the Agency argues that Complainant was not aggrieved, the alleged incidents do not support an actionable harassment claim, and Complainant has failed to establish a prima facie case for reprisal. ANALYSIS AND FINDINGS A formal 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 (Mar. 13, 1997). In the instant matter, we find that when viewing the alleged incidents collectively, Complainant has set forth an actionable claim of harassment. Complainant alleges that she felt that M1 "ambushed" during a staff meeting and "badgered" her about completing new computer procedures. Complainant explains that she was treated differently from other employees with respect to work assignments and disciplinary action. Complainant states that management required that she perform tasks that no other employee was required to complete (i.e., submitting daily task lists to management and following new computer procedures), and management disciplined Complainant, but not another employee, for a similar error. Considering all the incidents alleged by Complainant and assuming they occurred as alleged, Complainant has established that she was subjected to continuous harassment. Therefore, we find that the instant complaint states a claim. Complainant has alleged an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Finally, we note that on appeal, the Agency argues that Complainant has failed to establish a prima facie case of reprisal. We find that the Agency has, on appeal, articulated a reason that goes to the merits of Complainant's claim, and is irrelevant to the procedural issue of whether Complainant has stated a justiciable claim. See Ferrazzoli v. USPS, EEOC Request No. 05910642 (August 15, 1991). We REVERSE the Agency's final decision dismissing the formal 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 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. 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 ___September 5, 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 0120182060 6 0120182060 7 0120182060