0120162727
11-16-2016
Aleshia C.,1 Complainant, v. Sylvia Mathews Burwell, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Aleshia C.,1
Complainant,
v.
Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services
(Food and Drug Administration),
Agency.
Appeal No. 0120162727
Agency No. HHSFDAORAHQ05716F
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated August 3, 2016, 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.
BACKGROUND
During the period at issue, Complainant worked as a Program Analyst for the Agency in Silver Spring, Maryland.
On February 9, 2016, Complainant initiated EEO Counselor contact. During EEO counseling, Complainant alleged that the Supervisory Consumer Safety Officer (hereinafter referred to as the Responsible Management Official or "RMO") refused to provide input for her 2015 Performance Management Appraisal Program (PMAP). Complainant alleged that the RMO gave negative input on her PMAP, which resulted in a rating which did not accurately reflect Complainant's performance. Informal efforts to resolve her concerns were unsuccessful.
On May 24, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race, sex color, and in reprisal for prior protected EEO activity. Specifically, Complainant alleged that "[f]rom the time I questioned why the actions were occurring with the [Assistant Director of Program Operations] ADPO position that I was selected for, extended an offer on, and obtained a release date for, I began to be treated differently with my performance reviews by [RMO]." Complainant further alleged that despite completing tasks outside of her responsibilities, the rating was still drastically different from her 2013 score of Outstanding. Complainant stated that the discriminatory conducted spanned the period from March 17, 2015 through to January 27, 2016.
Additionally, Complainant alleged that she was being discriminated against during the hiring process due to her race and sex. Complainant alleged that she was offered and selected as the ADPO in December 2014, but was told in January 2015 that the position was placed "on hold." Complainant obtained her PMAP score in February 20152, which seemed "extremely low and it appeared that I was being retaliated against because of the events that unfolded during my hiring process for [the Agency]." Complainant continued that to date, she had yet to receive resolution regarding the job position.
On August 3, 2016, the Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency also dismissed the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). The Agency determined that the formal complaint was comprised exclusively of the following matter:
1. on September 18, 2015, an Agency Supervisor refused to provide Complainant input for her 2015 Performance Management Appraisal Program (PMAP).
The instant appeal followed. On appeal, Complainant through her attorney, contends that after she had participated in EEO activity against RMO, RMO refused to provide her with input for her 2015 PMAP. Complainant contends that her 2015 PMAP was not completed until February 2016. Complainant contends that around that time she realized that RMO's actions lowered her overall 2015 PMAP rating.
ANALYSIS AND FINDINGS
As a threshold matter, we determine that the formal complaint was not comprised exclusively of the matter identified in the Agency's final decision. Instead, a fair reading of the pre-complaint documents and Complainant's formal complaint reflects that Complainant claimed she was harassed through a variety of events that encompassed more than the above referenced claim.
Failure to State a Claim
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any 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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
The Commission finds that a fair reading of Complainant's complaint reflects that Complainant alleged a pattern of harassment. In its final decision, the Agency distilled the matters raised in Complainant's formal complaint to a single allegation relating her 2015 PMAP. We find, however, that Complainant's complaint is not comprised exclusively of this matter. Instead, the formal complaint addresses her claim that she was being discriminated against during the hiring process due to her race and sex. Complainant had alleged that she was offered and selected as the ADPO in December 2014, but was told in January 2015 that the position was placed on hold. Additionally, Complainant noted in her formal complaint that the discrimination spanned from March 17, 2015 through to January 27, 2016. Finally, Complainant stated in her formal complaint that as of the date of her formal complaint, she had still received no further information regarding the ADPO position.
We therefore find, that Complainant has stated a claim of harassment consisting of a series of actions from March 17, 2015 through to January 27, 2016, as discussed in Complainant's formal complaint documents. By alleging a pattern of harassment, Complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993).
Untimely EEO Counselor Contact
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.
With regard to the timeliness of Complainant's initial EEO Counselor contact, at least one incident occurred within the 45-day limitation period (e.g., Complainant contends that she did not receive the final 2015 PMAP until January/February 2016; additionally, Complainant stated in her formal complaint that she still had yet to receive a resolution regarding the ADPO position). The Supreme Court has 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 National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). Applying Morgan, 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).
At least one incident comprising of Complainant's hostile work environment claim occurred within the 45-day time period preceding Complainant's February 9, 2016 EEO Counselor contact; and, because a fair reading of the record reflects that the other allegation identified are part of an ongoing harassment claim, we find that the Agency improperly dismissed these incidents on the grounds of untimely EEO Counselor contact.
The Agency's final decision dismissing the formal complaint is REVERSED. The formal complaint as defined herein is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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 (M0416)
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 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. The requests 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 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 (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.
Carlton M. Hadden, Director
Office of Federal Operations
November 16, 2016
__________________
Date
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.
2 There is conflicting in Complainant's statements, as Complainant stated in her formal complaint that she did not receive a signed 2015 PMAP until February 2015, but then states in her appeal that it was February 2016.
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