Ludie M.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency.Download PDFEqual Employment Opportunity CommissionNov 2, 20180120182812 (E.E.O.C. Nov. 2, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ludie M.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency. Appeal No. 0120182812 Agency No. OCFO-2018-00647 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated July 12, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked for the Agency as an Information Technology Specialist in New Orleans, Louisiana. On April 30, 2018, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On July 10, 2018, Complainant filed a formal complaint. Complainant claimed the Agency subjected her to a hostile work environment and discrimination based on race, sex, and disability when: 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. 0120182812 2 1. on an unspecified date in February 2018, management reassigned her from her GS-(series number unspecified)-14, Branch Chief of Business Intelligence, Black End Processing Branch position to a GS-2210-14, Step 6, Information Technology Specialist position; 2. on September 12 and 19, 2017, her supervisor failed to act on her request for a Reasonable Accommodation of a reassignment from her GS-14, Branch Chief of Business Intelligence, Black End Processing Branch position to a non-supervisory position, nor did management respond with action for her reported allegations of harassment from employees; and, 3. on several dates, she was subjected to various acts of harassment, including but not limited to: a. during August 2017, a group of employees threatened to call the Acting Chief Financial Officer, as they did not agree with her technical approach to a problem; b. during September 2017, an employee during a conference call, publicly humiliated her by not informing her that Senior Executives were monitoring the conversation (the subject matter of the conference call was not specified); c. on September 6 and October 5, 2017, a group of employees sabotaged her credibility and created distrust among her leaders in her abilities; d. on September 7, 2017, a Division Director sent her, an electronic mail transmission (email), as a part of a group email, stating "Draft response - input requested to avoid an email being sent to (two specific named managers) saying that we (Complainant's work team) are not cooperating..."; and, e. during September 14-15, 2017, an employee, referring to her work team, stated "Those people, I will see what (named a specific manager) has to say about this" On July 12, 2018, the Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.105(a)(1), for untimely EEO Counselor contact. The instant appeal followed. Complainant requests that the Commission reverse the Agency’s decision based on the circumstances, which she argues was beyond her control. ANALYSIS AND FINDINGS Reasonable Accommodation: Claim 2 This Commission has specifically held that the denial of reasonable accommodation constitutes a recurring violation that repeats each time the accommodation is needed. Harmon v. Office of Personnel Management, EEOC Request No. 05980365 (Nov. 4, 1999). 0120182812 3 Further, the EEOC Compliance Manual, Section 2, “Threshold Issues,” p. 2-73, EEOC Notice 915.003 (My 21, 2005), provides that because an employer has an ongoing obligation to provide a reasonable accommodation failure to provide such accommodation constitutes a violation each time the employee needs it”. In claim 2, Complainant alleged that she was denied a reasonable accommodation on September 12 and 19, 2017. The Agency has not demonstrated that it has, at any point, engaged in an interactive process with Complainant to accommodate her. The Agency's alleged failure to provide Complainant her requested reasonable accommodations is a recurring violation, because the harm recurs each day the Agency fails to address the requests. Complainant v. Office of Personnel Management, EEOC Request No. 05980365 (November 4, 1999) (denial of reasonable accommodation is recurring violation); Complainant v. Equal Employment Opportunity Commission, EEOC Appeal No. 01A10826 (July 13, 2001) (failure to provide career ladder promotion is a recurring violation); Complainant v. Department of the Navy, EEOC Appeal No. 01964090 (February 12, 1997) (citing Robinson v. General Services Administration, EEOC Request No. 05950558 (July 1, 1996)) (sex-based wage discrimination is recurring violation); Complainant v. Department of Veterans Affairs, EEOC Appeal No. 01A15275 (January 8, 2002) (agency's failure to submit paperwork related to Complainant's injury is a recurring violation). Since the matter is a recurring violation, Complainant's counselor contact was timely in any claim associated with a reasonable accommodation request. For the reasons discussed above, the initial EEO Counselor contact for claim 2 is deemed timely. Untimely EEO Counselor Contact: Remaining Claims EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (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. 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. Here, the record reflects that Complainant is alleging a continuing hostile work environment demonstrated by all three claims. The record further reflects that at least one of the incidents comprising the instant harassment/hostile work environment claim occurred within the 45-day period preceding Complainant's initial EEO contact on April 30, 2018. Specifically, the recurring reasonable accommodation violation in claim 2 as discussed above. The Commission has consistently held that “[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence.” 0120182812 4 EEOC Compliance Manual, Section 2, Threshold Issues at 2- 75 (revised July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)). Accordingly, we determine that the Agency improperly dismissed claims 1 and 3 on the grounds of untimely EEO Counselor contact. The Agency’s final decision dismissing the formal complaint for untimely EEO Counselor contact is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER (E1016) 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. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 0120182812 5 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. 0120182812 6 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, Director Office of Federal Operations November 2, 2018 Date Copy with citationCopy as parenthetical citation