Gabriele G,1 Complainant,v.David S. Ferriero, Archivist of the United States, National Archives and Records Administration, Agency.

Equal Employment Opportunity Commission

Feb 6, 2019

2019000612 (E.E.O.C. Feb. 6, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Gabriele G,1
Complainant,

v.

David S. Ferriero,
Archivist of the United States,
National Archives and Records Administration,
Agency.

Appeal No. 2019000612

Agency No. 1812STL

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated August 6, 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Human Resources Specialist, Employee
Benefits, GS-0201-12 at the Agency’s Performance and Benefits Branch, Human Capital Office,
at the National Personnel Records Center in St. Louis, Missouri.

On January 29, 2018, Complainant initiated EEO Counselor contact. Informal efforts to resolve
her concerns were not successful.

On March 7, 2018, Complainant filed a formal complaint, claiming that the Agency subjected
her to discrimination based on race, disability, age, and in reprisal for prior protected EEO
activity when:
1. On October 19, 2017, she was not selected for promotion to the position of

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.
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Human Resources Specialist (Benefits), GS-0201-13, advertised under Vacancy
Announcement Number JD10047731JHM;

2. On December 1, 2017, she received a “Fully Successful” rating on her appraisal
for the rating period October 1, 2016 to September 30, 2017;

3. Since on or about December 2017, management verbally chastised her for written
responses to work assignments, among other matters;

4. On January 22, 2018, she learned that management intended to mark her absent
without leave (AWOL) on January 18 and 19, 2018; and

5. On January 23, 2018, she learned that management told two of her coworkers that
they should not be helping her with work assignments.

While not addressed by the Agency in its final decision, a review of the formal complaint in this
matter further indicates that Complainant alleged that the Agency had:

engaged in an ongoing pattern and practice of discrimination and hostile work
environment harassment toward [Complainant].

In addition to the claims above identified by the Agency, Complainant’s formal complaint also
indicated that:

[o]n or about September 29, 2017, [Complainant] and the Agency executed a
Settlement Agreement concerning [Complainant’s] EEO complaint in Agency
Case No. 1527STL; EEOC No. 531-2017-0014X.

On August 6, 2018, the Agency issued a final decision. The Agency dismissed claims 1 and 2
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 regarding
claims 1 and 2 was beyond the applicable time limitation for timely seeking EEO counseling.

The Agency dismissed claims 3, 4 and 5 for failure to state a claim in accordance with EEOC
Regulation 29 C.F.R. §1614.107(a)(1). Specifically, the Agency determined that in claims 3 – 5
Complainant failed to demonstrate that she was harmed with respect to the terms and conditions
of her employment with the Agency. We note that in its final decision, the Agency failed to
acknowledge or address Complainant’s claim that she was subjected to an ongoing pattern of
harassment. This appeal followed.

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ANALYSIS AND FINDINGS

Untimely EEO Counselor contact – claims 1 and 2

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 she 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 a 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. The Commission has adopted a “reasonable suspicion” standard (as opposed
to a “supportive facts” standard) to determine when the forty-five (45) day limitation period is
triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11,
1999). Thus, the time limitation is not triggered until a complainant reasonably suspects
discrimination, but before all the facts that support a charge of discrimination have become
apparent.

In its final decision, the Agency determined that Complainant’s EEO contact on January 29,
2018 regarding claims 1 and 2 occurring on October 19, 2017 and December 1, 2017
respectively was beyond the applicable 45-day time limitation. However, 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, 536 U.S. 101, 117 (2002). We note that, “discrete discriminatory
acts are not actionable if time barred, even when they are related to acts alleged in timely filed
charges.” Id. 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. However, such untimely discrete acts may be used as evidence in
support of a timely claim of ongoing harassment/hostile work environment. Id.

Failure to state a claim – claims 3, 4 and 5

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 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. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot
establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim.
29 C.F.R. § 1614.107(a)(1).

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The Commission has held that where, as here, a complaint does not challenge an agency action
or inaction regarding a specific term, condition, or privilege of employment, the claim of
harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the
conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17,
23 (1993)

In the instant matter, Complainant has asserted that she has been subjected to harassment based
on her race, disability, age and in reprisal for her participation in prior protected EEO activity,
namely an agreement executed by the parties on September 29, 2017. The record indicates that
the agreement settled a prior EEO complaint filed by Complainant having Agency Case No.
Case No. 1527STL. In support of her claim of hostile work environment harassment,
Complainant asserts that the Agency failed to promote her, that she received a lowered
performance appraisal, that she was subjected to greater scrutiny regarding work assignments,
and that management officials berated co-workers for assisting Complainant with work
assignments. Upon review, we find that Complainant has asserts that all the subject claims
identified above (including claims 1 and 2) were connected and occurred in concert to create a
hostile work environment. Moreover, we conclude that Complainant has alleged a series of
events as part of a claim of harassment, of which at least one act falls within the filing period.

The Agency has, in many instances addressed the merits of Complainant’s complaint without a
proper investigation as required by EEOC regulations. The Agency’s articulated reasons for the
actions in dispute, go the merits of Complainant’s complaint, and are irrelevant to the procedural
issue of whether she 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 (August 12, 1993); Ferrazzoli v. U.S. Postal Serv., EEOC Request No.
05910642 (August 15, 1991). As such, we find that the Agency’s dismissal of claims 3, 4 and 5
was not appropriate.

Finally, we acknowledge the Agency’s argument with respect to claim 4, that it failed to state a
claim, because Complainant was never actually charged AWOL for her absences on January 18
and 19, 2018. However, we note, at a minimum, that Complainant has alleged unlawful reprisal
as one of the motivating factors for the alleged harassment. Under the Commission’s broad view
of reprisal, any adverse treatment that is based upon a retaliatory motive and is reasonably likely
to deter Complainant or others from engaging in protected activity, states a claim. See Lindsey
v. United States Postal Service, EEOC Request No. 65980410 (November 4, 1999); EEOC
Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (August 25, 2016).

CONCLUSION

The Agency’s dismissal of Complainant’s formal complaint was improper. We REVERSE the
Agency’s final decision dismissing the formal complaint. We REMAND the formal complaint
to the Agency for further processing in accordance with the ORDER below.

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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.

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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.
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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

February 6, 2019
Date