Omer P.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Sep 4, 2019

2019003189 (E.E.O.C. Sep. 4, 2019)

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

Omer P.,1
Complainant,

v.

William P. Barr,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.

Appeal No. 2019003189

Agency No. FBI-2018-00333

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated March 4, 2019, 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 Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Equipment
Specialist, GS-9, at the Agency’s San Antonio Field Office in San Antonio, Texas.

On July 31, 2018, Complainant initiated EEO contact alleging that the Agency subjected him to
disparate treatment and hostile work environment harassment based on disability (Autism
Spectrum Disorder) and reprisal for prior protected EEO activity when:

1. on October 3, 2016, the Agency reassigned Complainant from automotive
mechanic duties to escort duties,
2. on June 13, 2017, it placed Complainant on a Performance Improvement Plan,

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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3. from August 3, 2017 through June 1, 2018, it failed to approve Complainant’s
request for reasonable accommodation,
4. from November 2017 through June 1, 2018, it failed to respond to
Complainant’s Performance Annual Report grievance, and
5. on June 1, 2018, it removed Complainant from Agency employment.

On September 6, 2018, Complainant filed a formal EEO complaint reiterating his claims of
disparate treatment and harassment.

In a decision dated March 4, 2019, the Agency dismissed Complainant’s complaint pursuant to
29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact.

The instant appeal from Complainant followed. On appeal, Complainant stated that he did not
realize the Agency discriminated against him until his attorney and therapist reviewed his
removal letter and informed him of such because the Agency failed to provide accommodation
for his disability. Complainant also stated that the Agency gave him the wrong rights on his
removal letter, which sent him to the Merit Systems Protection Board (MSPB) in error.2

ANALYSIS AND FINDINGS

As an initial matter, we find that a fair reading of the complaint in this case reveals that
Complainant is alleging that the Agency subjected him to ongoing harassment on the bases of
disability and reprisal, that resulted in his removal from employment. The allegations in his
complaint are proffered as examples of this pattern of harassment. Therefore, incidents (1)
through (4) should not be viewed as separate claims, but factual allegations offered in support of
this ongoing discriminatory harassment claim.

As such, we find the Agency improperly dismissed Complainant’s complaint on the grounds of
untimely EEO Counselor contact. The Agency issued Complainant a letter of removal dated June
1, 2018, with appeal rights to the MSPB solely. Complainant filed an MSPB appeal on July 2,
2018. 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-IV.C.1.b (revised July 21, 2005) (citing National
Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)).

2 The record contains a letter of removal dated June 1, 2018, for “Unacceptable level of
performance.” The letter provides appeal rights solely to the MSPB. On July 2, 2018,
Complainant filed an MSPB appeal, which was dismissed for lack of jurisdiction.
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In this case, we find the June 1, 2018 removal is within the 45-day time period preceding
Complainant's MSPB appeal filed on July 2, 2018. It is clear from the record that the Agency
misinformed Complainant of his appeal rights, and that Complainant's EEO Counselor contact
may have been delayed as a result of the Agency's misinformation. The Commission has
previously held that an agency may not dismiss a complaint based on a complainant's
untimeliness, if that untimeliness is caused by the agency's action in misleading or misinforming
complainant. See Wilkinson v. United States Postal Service, EEOC Request No. 05950205
(March 25, 1996); see also Elijah v. Dep’t of the Army, EEOC Request No. 05950632 (March
28, 1996) (if agency officials misled complainant into waiting to initiate EEO counseling, agency
must extend time limit for contacting EEO Counselor).

CONCLUSION

Accordingly, we REVERSE the Agency's final decision dismissing Complainant's harassment
claim and claim of discriminatory removal. We REMAND the claims 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
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.
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).
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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 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.
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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 4, 2019
Date