0120132027
08-28-2013
Nick T. Cheng, Complainant, v. Daniel M. Tangherlini, Administrator, General Services Administration, Agency.
Nick T. Cheng,
Complainant,
v.
Daniel M. Tangherlini,
Administrator,
General Services Administration,
Agency.
Appeal No. 0120132027
Agency No. GSA-13-CO-Q-0019
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated April 17, 2013, 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 an IT Specialist at the Agency's Federal Acquisition Service, Office of Charge Card Management in Arlington, Virginia.
On December 5, 2012, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On March 15, 2013, Complainant filed the instant formal complaint. Therein, Complainant alleged that he was subjected to harassment and a hostile work environment on the bases of race, national origin, sex, color, disability, age, and in reprisal for prior protected activity when:
1. from December 10, 2010 to December 2012, the Agency failed to take any convincible, effective, and prompt action to stop or to prevent him from receiving known harassment, discrimination, retaliations, and abuses. Agency indulged, allowed and encouraged illegal actions to be worsened, more severe, and continued;
2. from April 2012 to December 3, 2012, the Office of the Chief People Officer (CPO) failed to take prompt actual action against the Agency's harassments and retaliations;
3. on or about December 31, 2012, CPO resorted to censorship of his posted ideas and comments, and hid the OCPO Great Idea Hunt information because of a very embarrassing final voting result;
4. on or about October 3, 2011, Supervisory Human Resources Specialist (Specialist) participated in the unethical cover-up demo and unethical task assignment with unreasonable workload and set to fail deadline. This incident had ended with a Letter of Warning against his ethical and professional conducts;
5. on or about November 14, 2011, the Specialist participated in the downgrade of his FY 2011 annual appraisal;
6. on or about October 31, 2011, the Specialist participated in drafting his FY 2012 Performance Plan;
7. from December 1, 2011 to January 12, 2012, the Specialist participated in the harassment, discrimination, and retaliation events in two well-coordinated but seemingly unrelated series of actions. Her insidious manipulation and sinister motive in Agency harassment, discrimination, and retaliation;
8. on or about January 12, 2012, the Specialist helped in drafting the second Letter of Reprimand (LOR) on Complainant's supervisor's dishonesty and Agency out-of- proportion exaggeration on a small event, which was not Complainant's fault event;
9. on or about February 10, 2012, the Specialist participated in providing false information to Department of Labor's Office of Workers' Compensation Program OWCP) for hiding his post-concussion syndrome fact from OWCP;
10. on or about March 2012 to present, the Specialist participated in the inhuman abuses in his serious medical condition from Agency discrimination and retaliation and in violation of his OWCP approval entitled rights;
11. on or about March 2012, the Specialist participated in forbidding other staff members to help him in his serious medical condition;
12. on or about March 2012, the Specialist committed perjury in her witness affidavit while she was in fact a member of GSA system harassment, discrimination, retaliation, and abuses;
13. from September 2011 to March 18, 2013, the Specialist and the Agency made his telework impossible;
14. on or about September 2012, the Agency "messed up" his FAC-
PPM certification Continuing Learning (CL) record to maintain his certification;
15. on or about February 20, 2012, he received an official letter from his supervisor requesting medical documentation, which is a violation of GSA ADM 2300 P;
16. on or about December 12, 2012, his supervisor requested that OCCM staff meet in person;
17. on or about October 23, 2012 his supervisor and the Specialist continued using the already (in-EEO-complaint) FY 2012 performance plan as an issue in the FY 2013 performance plan. Their purpose were to harass, to discriminate, and to retaliate on him, and to guarantee him poor performance and to make his medical challenges to become performance issues;
18. on November 21, 2012, his supervisor and the Specialist used the performance appraisals as Agency systemic harassing, discriminatory, and retaliatory tools;
19. his supervisor made a false statement in his CA-7a form (DOL form);
20. on or about July 18, 2012, TMVCS Assistant Commissioner denied his appeal for reconsideration of his supervisor's denial of his OWCP entitled time for recovery, seeing doctor, and treatments;
21. on or about May 30, 2012, his supervisor gave him a very bad mid-year appraisal with his dishonest, fabricated, discriminatory, and disregarding of his OWCP rights accusations;
22. on May 1, 2012, his supervisor denied the request for reduced schedule application disregarding his OWCP rights; and
23. on April 26, 2012, his supervisor denied him sick leave.
The Agency dismissed claims 14, 15, 17, 20, 22, and 23 on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact on December 5, 2012, was beyond the 45-day limitation period. The Agency dismissed claims 1 - 13, 16, 18, 19, and 21, pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Specifically, in addressing these claims, the Agency found that unless the conduct is severe, a single incident or group of isolated incidents will not state a claim of discriminatory harassment.
ANALYSIS AND FINDINGS
Claims 1 - 13, 16, 18, 19, and 21
The Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment by dismissing claims 1 - 13, 16, 18, 19, and 21 for failure to state a claim. A fair reading of the matters identified in those claims reflect that Complainant claims that he was subjected to a series of related harassing incidents from December 10, 2010 through December 31, 2012. In his formal complaint, Complainant requested the harassment ceased, apology from the Agency; corrective action for all responsible management officials; all retaliatory documents including his Letter of Reprimand and appraisals issued after April 26, 2012 be removed from the Agency's system and his file; restoration of leave used during the relevant period; compensatory damages, attorney's fees; as a remedy. These matters, taken together, state an actionable claim of harassment. By alleging a pattern of harassment regarding allegations 1 - 13, 16, 18, 19, and 21, Complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993).
Claims 14, 15, 17, 20, 22, and 23
The Agency also improperly dismissed claims 14, 15, 17, 20, 22, and 23 on the grounds of untimely EEO Counselor contact. Complainant initiated EEO Counselor contact on December 5, 2012. The Commission has 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." 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)).
The record reflects that various incidents comprising Complainant's harassment/hostile work environment claim occurred within the 45-day time period preceding Complainant's December 5, 2012 EEO Counselor contact, as discussed above. Because a fair reading of the record reflects that the matter identified in claims 14, 15, 17, 20, 22, and 23 is part of that harassment claim, we find that the Agency improperly dismissed it on the grounds of untimely EEO Counselor contact.
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's formal complaint, defined herein as a harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claim (harassment/hostile work environment) 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 becomes final. 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 becomes final, 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 (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).
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
August 28, 2013
__________________
Date
2
0120132027
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120132027
8
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