U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Iris D.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Food and Nutrition Service), Agency. Appeal No. 0120182439 Agency No. FNCS201800449 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 12, 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 At the time of events giving rise to this complaint, Complainant worked as a Senior Human Resources Technical Advisor, GS-0343-14, at the Agency's Food and Nutrition Service in Washington, District of Columbia. On March 7, 2018, Complainant initiated informal EEO counseling, alleging harassment and discrimination relating to the occurrence of a series of incidents involving members of the Agency's management. The matter was not resolved informally and, on April 10, 2018, the EEO counselor sent Complainant a Notice of Right to File a formal EEO complaint (NRF), by certified mail. Complainant alleges that, on April 30, 2018, she contacted the EEO counselor, as she had not received the NRF. The EEO Counselor checked the postal tracking data, which indicated attempted deliveries of the NRF on April 13, 2018 and April 16, 2018. Complainant indicated she would go to the post office that day, April 30, 2018, and inform the EEO counselor by the next morning if she had been able to retrieve the NRF. Complainant received the NRF that evening at the post office. Complainant sent a letter notifying the EEO counselor the following day, May 1, 2018. The EEO counselor replied on May 2, 2018 that Complainant's 15 calendar days to submit her formal complaint started on May 1, 2018. On May 16, 2018, Complainant filed a formal complaint against the Agency. The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2), due to the untimely filing of the formal complaint. The Agency reasoned that Complainant received the NRF on April 30, 2018 and the formal complaint should have been filed on or before May 15, 2018, in order to meet the 15-day filing deadline. Complainant's formal complaint was, therefore, one (1) day untimely. In her formal complaint, Complainant alleged several instances of harassment and discrimination on the bases of color (dark skin) and reprisal for prior protected EEO activity.2 She alleged that, beginning on November 22, 2017, the Deputy Administrator for Management and Acting Human Resources Director, challenged and questioned the HR programs under Complainant's oversight. She also alleged that on February 5, 2018, the Deputy Administrator for Management temporarily promoted or "detailed" a co-worker (not of color) into the position of Acting Human Resources Director without giving her the opportunity to compete for that position. She asserted that since February 5, 2018, the Acting Human Resources Director has changed Complainant's duties, responsibilities, and working conditions; has refused to include her in meetings and assignments; has not had conversations with her; and sends work assignments after work hours in the late evening. Finally, Complainant alleged that on March 19, 2018, the Acting Human Resources Director issued Complainant a Letter of Reprimand. The EEO counselor's report indicates that Complainant believed the alleged harassment and discrimination were in retaliation for Complainant serving as a witness in an EEO investigation relating to alleged discrimination against the former Human Resources Director, who had resigned on February 2, 2018. It includes a letter of resignation, dated February 2, 2018, from the former Human Resources Director to the Deputy Administrator for Management, alleging workplace harassment and discrimination based on gender (female) and ethnicity (Hispanic). The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. In so doing, the Agency found Complainant alleged discrimination based on color (dark skinned) and reprisal (whistleblower activity) when: (1) on February 5, 2018, management denied her the opportunity to serve as the Acting Human Resources Director; and (2) on March 19, 2018, management issued her a Letter of Reprimand. The Agency found that Complainant alleged she had been subjected to reprisal-based discrimination due to her whistleblower activity and her participation in a management inquiry, neither of which was protected activity under EEO regulations. The Agency further noted there was no showing that Complainant participated in the EEO process before her initial contact with the EEO counselor. The Agency, therefore, dismissed the complaint. The instant appeal followed. On appeal, with respect to the dismissal based on untimeliness of the filing of the formal complaint, Complainant asserts that equitable estoppel should apply, as Complainant reasonably relied on the incorrect advice of the EEO counselor and the Agency should not be allowed to benefit from the misinformation provided to Complainant. The EEO counselor indicated May 1, 2018 was the start date of the 15-day period with the knowledge that Complainant received the Notice of Right to File on April 30, 2018. Complainant has submitted copies of email correspondence with the EEO counselor supporting Complainant's assertions, including the email showing the EEO counselor indicated that the 15-day period would begin May 1, 2018. With respect to the dismissal for failure to state a claim, Complainant asserts that her reprisal claims are based on prior EEO or other activity protected by Title VII. She specifically identifies two such activities. First, she was a witness in an active informal EEO case involving her first and second level supervisors, which was filed on or around November 10, 2017, prior to her initial contact with the EEO counselor on December 6, 2017. Second, she asserts she reported allegations of harassment/hostile work environment on or around December 6, 2017 to the EEO counselor, after which she was involved in the investigation that included the "Management Inquiry" discussed above and subjected to retaliation, including the issuance of the March 19, 2018 Letter of Reprimand discussed above. ANALYSIS AND FINDINGS Timeliness of the Formal Complaint The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106, unless the agency extends the time limits in accordance with § 1614.604(c), which provides that the filing limitation period is subject to waiver, estoppel, and equitable tolling. Under 29 C.F.R. § 1614.106(b) a written complaint must be filed with an appropriate agency official within 15 calendar days after the date of receipt of the notice of the right to file a formal complaint. Upon review of the record, we find that the record establishes Complainant received the NRF on April 30, 2018. However, we find equitable estoppel is applicable in the instant case. Equitable estoppel is the principle by which a party is precluded by his own acts, words, or silence from asserting a right to which he otherwise would be entitled against another who rightfully relied on the party's acts, words, or silence to his detriment." Jackson v. U.S. Postal Service, EEOC Appeal No. 01931557 (February 17, 1994) (citing A.C. Aukerman Co. v. R.L. Chaides Constr. Co., 960 F.2d 1020, 1041 (Fed. Cir. 1992)). The record shows that Complainant reasonably relied upon the EEO counselor's statement that her 15-day time limit would begin to run on May 1, 2018. Under these circumstances, we conclude that complainant's formal complaint filed on May 16, 2018 was timely under the principles of equitable estoppel. Failure 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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). The Complainant alleged that the Agency subjected her to harassment and discrimination on the bases of color (dark skin color) and reprisal for prior protected EEO activity in several instances as noted above. However, the Agency did not address her allegations of harassment. 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 and create a hostile or abusive working environment." See also Oncale v. Sundowner Offshore Services. Inc., 23 U.S. 75 (1998). 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, 510 U.S. at 21-22. Thus, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment. Towards establishing her claim of harassment, Complainant alleged that on November 22, 2017, the Deputy Administrator for Management and Acting Human Resources Director challenged and questioned the HR programs under Complainant's oversight; and the Acting Human Resources Director has changed Complainant's duties, responsibilities, and working conditions, has refused to include her in meetings and assignments, has not had conversations with her, and sends work assignments after work hours in the late evening. We find these alleged incidents are sufficient, in conjunction with the claims concerning the denial of the opportunity to compete for the Acting Human Resources Director position and the March 2018 reprimand, to rise to the level of actionable harassment. Therefore, we reverse the Agency's dismissal of the complaint and remand it back for investigation and further processing. As redefined, the complaint alleges that the Agency subjected Complainant to discrimination on the bases of color (dark skin) and reprisal for prior protected EEO activity when: (1) on February 5, 2018, the Deputy Administrator for Management temporarily promoted or "detailed" a co-worker (not of color) into the Acting Human Resources Director without giving Complainant the opportunity to complete for that position, (2) on March 19, 2018, the Acting Human Resources Director issued her a Letter of Reprimand, and (3) Complainant was subjected to ongoing harassment, including (in addition to claims 1 and 2) being challenged and questioned about the programs under her oversight, as well as the Acting Human Resources Director changing Complainant's duties, responsibilities, and working conditions, refusing to include her in meetings and assignments, not having conversations with her, and sending work assignments after work hours in the late evening. These allegations are sufficient to establish that Complainant is an "aggrieved employee" within the meaning of the regulations. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter 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 20, 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 Complainant also alleged discrimination on the basis of reprisal for whistleblower activities, which is not covered by Title VII, as amended, 42 U.S.C. § 2000e et seq. and does not fall under the jurisdiction of the EEOC. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120182439 7 0120182439