U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sueann C,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120182521 Agency No. 4G-770-0143-18 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 4, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Staffing Specialist at the Agency's "Houston District" facility, in Houston, Texas. On April 1, 2018, Complainant initiated contact with an EEO Counselor. On May 9, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to an ongoing hostile work environment and discrimination on the bases of race (Asian), national origin (Vietnamese-American), and age (57) when: 1. Beginning in December of 2016, Complainant was required to clear her personal items from her cubicle, complete "e-Reassign" Reports, back-fill various positions within in her department, was not given additional staffing, had her leave requests disapproved, was required to provide documentation to be granted Family Medical Leave Act (FMLA) and Sick Leave; 2. On February 20, 2018, her supervisor treated her rudely during a staff meeting when Complainant was rudely instructed to sit down; 3. In March of 2018, the Annual Leave Roster was changed to accommodate certain people; and 4. On October 5, 2016, March 10, 2017, and April 15, 2018, Complainant's request for the plaque commemorating her thirty (30) years of service was not provided to her. (In her complaint, Complainant identified the most recent date of discrimination as occurring on April 1, 2018.) She claimed that she was the only Asian employee in the office and that she was subjected to rude behavior, and less favorable treatment in terms of her work load and her work environment, because she is an older Vietnamese -American employee. The Agency's Notice of Right to File recited in detail Complainant's claims that she was subjected to a continuous hostile work environment based on her race, age and national origin. The Notice cited many examples, including that, from December 2016, through 2018, Complainant was required to clear all personal items and magnets from her cubicle, while another employee was permitted to keep her personal items. Complainant claimed that she was not offered the usage of the vacant office room, which was given to a more junior employee. She also stated that she was required to complete certain tasks, not required of others, and that others did not do those tasks for her. She claimed that she was treated rudely by her supervisor and "other employees have taken to sending [her] emails stating what [Complainant] is to do and not do." The Agency Decision On June 4, 2018, the Agency issued a final decision dismissing the complaint. The Agency dismissed claim 1 for untimely EEO contact. The Agency reasoned that the EEO contact was 455 days after the issue alleged to be discriminatory and occurring on December of 2016. Next, the Agency dismissed claims two to four for failure to state a claim. The Agency reasoned that under EEO regulations, every work-related issue does not constitute a term, condition, or privilege of employment. The Agency found that "there is no evidence in the record to show that Complainant was subjected to any adverse action or were denied any entitlement in relation to a term, condition, or privilege of employment. In dismissing the complaint, the Agency also concluded that the complaint lacked specificity and that "there is no indication that [Complainant] suffered any harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy." This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant asserts that management created and condoned a hostile work environment and allowed two other employees to do whatever they wanted. She maintains that she was accorded less favorable treatment. She mentions that she was not given her plaque in recognition of her service, but three others, not in her protected group received their plaques. She claims that another individual was permitted to occupy a vacant office, that was not offered to her and that she was subjected to rude comments. The Agency did not file a brief in response to Complainant's appeal. ANALYSIS AND FINDINGS Initially, we find that the Agency erred when it found that her claims were untimely. She made EEO contact on April 1, 2018, alleging ongoing harassment and citing an incident that occurred on February 20, 2018 and another in March of 2018. The record shows that she made EEO contact within 45 days of those alleged incidents. We find, therefore, that the Agency failed to establish her EEO contact was untimely. Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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, disability, genetic information, or retaliation. See 29 C.F.R. 1614.103(a) and 1614.106(a). Further, a fair reading of the complaint in conjunction with the related EEO counseling report and the Notice of Right to File shows that Complainant was alleging that she had been subjected to a series of related incidents of disparate treatment, and ongoing harassment which she attributes to her race (Asian) and national origin (Vietnamese-American) and age.2 We construe Complainant as alleging claims of race, national origin and age discrimination that were part of an ongoing pattern of harassment that started in December of 2016 and continued, with the most recent related incidents occurring on or around March of 2018. Two other incidents of a hostile work environment of rude behavior were alleged to have occurred on June 22, 2018, on June 26, 2018. Those incidents are related allegations that were raised on appeal. In this case, Complainant offered statements of an eye-witness, who averred that the witness observed the condescending behavior directed toward Complainant., which she described as "ugly, rude, and hateful." The record includes a statement attesting that the witness observed Complainant being verbally attacked. In addition, Complainant alleges that, despite her repeated requests, she was not issued the award or plaque in recognition of her thirty years of service, while others, who were not Asian and younger, received their recognition plaque. In summary, she claims that her supervisor fostered hostility towards her, and that, as the only Asian employee, she was held to harsher terms and conditions and blamed for errors that she did not commit, which negatively impacted her workplace environment. In short, she claims that management favored younger employees and those who were not Asian. To the extent that the Agency's rationale for its dismissal was that the alleged actions fall within the realm of managerial prerogative and authority, the Agency addressed the merits of the claim. That rationale (that directing employees in the performance of their duties and ensuring the efficiency of the operations are the core duties of supervisors) is irrelevant to the procedural issue of whether the matter stated a viable claim. We find that she stated a Title VII and ADEA claim. Complainant has shown 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 (April 21, 1994). After our review of the record, we find that this complaint was improperly dismissed. CONCLUSION Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint. We REMAND the complaint to the Agency for further processing in accordance with this decision and 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 tends 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 27, 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 Although she did not allege retaliation, we note that the record reflects that she had prior EEO activity and the parties entered a 2016 settlement agreement to resolve the earlier claims. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120182521 6 0120182521