Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 0120142770 Hearing No. 460-2014-00031X Agency No. BOP-2013-0113 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated June 27, 2014, dismissing his 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 Senior Officer at the Agency's Federal Correctional Facility in Houston, Texas. On November 29, 2012, Complainant contacted the EEO Office. When the matter could not be resolved informally, he was issued a notice of right to file a formal complaint. On March 12, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian), sex (male), age (44), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. on January 29, 2013, Complainant was issued a proposal for a four (4) day suspension for "Inattention to Duty and Failure to Follow Policy" and 2. Complainant was referred to internal investigations for "Conduct, Leaving a Cell Door Unsecure, Failure to Follow Supervisor's Orders, and Failure to Wear a Vest at an Outside Hospital."1 The complaint was accepted for investigation. Following the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The Agency moved that the AJ dismiss the complaint or, in the alternative, issue a decision without a hearing. As for the dismissal, the Agency argued that claim (1) was a proposed action that should be dismissed pursuant to 29 C.F.R. § 1614.107(a)(5). The Agency noted that Complainant had been issued a Letter of Reprimand in lieu of the proposed suspension which has not been raised in an EEO complaint. Therefore, claim (1) should be dismissed. As for claim (2), the Agency noted that the investigations began in October 2010. Complainant did not make EEO counselor contact until November 2012, well beyond the 45 day time limit. Therefore, the Agency moved to dismiss claim (2) pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact. Complainant responded to the Agency's motion to dismiss. Through his attorney, Complainant asserted that the Agency failed to recognize his claim of unlawful retaliation. Complainant argued that he alleged that the Agency subjected him to harassment based on his age, race, sex, and prior EEO activity based on a series of events that started in 2007. Complainant alleged that after filing an earlier EEO complaint, he has been subjected to retaliatory harassment. To the extent the Agency asserted that his EEO contact was untimely, he stated that he did not become aware of the internal investigations until October 2012. Furthermore, he indicated that the investigations were part of his ongoing claim of harassment. Therefore, he argued that if one event was timely raised, the entire claim of harassment was timely raised. The AJ issued a decision granting the Agency's motion to dismiss the complaint as a whole. The AJ found that claim (1) constituted a proposed action. She noted that Complainant did not amend the complaint at hand to address the letter of reprimand which was issued in April 16, 2013, in lieu of the proposed suspension. As such, she dismissed claim (1) pursuant to 29 C.F.R. § 1614.107(a)(5). To the extent, Complainant alleged a claim of unlawful retaliation, the AJ found that Complainant not engaged in prior protected activity. Therefore, the AJ concluded that the basis of reprisal should also be dismissed pursuant to 29 C.F.R. § 1614.107(a)(5). The AJ then turned to the internal investigations. The AJ found that the internal investigations occurred in August 2010. However, Complainant did not contact the EEO Counselor until November 2012, well beyond the 45 calendar days. Therefore, the AJ dismissed claim (2) pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency implemented the AJ's decision to dismiss the complaint. The instant appeal followed. ANALYSIS AND FINDINGS Proposed Action As an initial matter, we find that the Agency failed to properly characterize Complainant's claim of discrimination. In his complaint, Complainant alleged a series of events which allegedly occurred in October 2010 to January 2013. Specifically, Complainant alleged that he was subjected to discriminatory and retaliatory harassment which created a hostile work environment. Instead of treating these events as incidents supporting this claim of harassment, the Agency looked at them individually. The AJ merely relied upon the Agency's definition of the claim at hand. Thus, we find that the Agency acted improperly by treating matters raised in Complainant's complaint in a piecemeal manner. See Meaney v. Department 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). Consequently, Complainant's claims are more properly viewed in the context of Complainant's complaint of harassment. The regulation set forth at 29 C.F.R. § 1614.107(a)(5) provides, in part, that the agency shall dismiss a complaint that alleges that a proposal to take a personnel action, or other preliminary step to taking a personnel action, is discriminatory. However, § 1614.107(a)(5) goes on to state that this does not apply to a claim, like that raised by Complainant, that a proposed action was retaliatory. We further note that the record shows that Complainant was issued a formal Letter of Reprimand in April 2013, in lieu of the four day suspension which was recommended. Thus the proposed suspension merged into the effectuated letter of reprimand to constitute an adverse personnel action. See Siegel v. Dep't of Veterans Affairs, EEOC Request No. 05960568 (October 10, 1997); Charles v. Dep't of the Treasury, EEOC Request No. 05910190 (February 25, 1991). Moreover, Complainant clearly raised this event as part of his claim of harassment on the part of management based on his race, sex, age and prior EEO activity. Therefore, upon review of the record, we find that the Agency's dismissal of claim pursuant to 29 C.F.R. § 1614.107(a)(5) was not appropriate.2 Untimely EEO Counselor Contact 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. 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, 122 S. Ct. 2061 (June 10, 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. Upon review of the record as a whole, we find that Complainant alleged a claim of harassment when he was subjected to internal investigations, greater scrutiny and disciplinary actions. Complainant made contact within 45 days of at least one of the events he raised in support of his claim of harassment. Therefore, we find that the AJ's dismissal and the Agency adoption of the AJ's decision were not appropriate. CONCLUSION Based on a review of the record and the contentions on appeal, we REVERSE the Agency's final decision and REMAND the matter in accordance with the ORDER below. ORDER The Agency shall submit to the Hearings Unit of the Houston District Office a request for a hearing, the complete complaint file, including the documents generated in the previous hearing request, and a copy of this decision within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complete complaint file and this decision have been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109, and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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 (M0610) 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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations January 29, 2015 __________________ Date 1 We note that the record indicates that these investigations may have started as early as 2010, but Complainant claims he was not made aware of the investigations until he was issued memoranda on the investigations between October 1 and October 17, 2012. 2 We note that the AJ determined that Complainant did not establish a prima facie case of discrimination. We find that the determination of whether Complainant established a prima facie case of unlawful retaliation is irrelevant to the procedural issue of whether he 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). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120142770 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120142770