Complainant,v.Eric H. Holder, Jr., Attorney General, Department of Justice (Drug Enforcement Administration), Agency.

Equal Employment Opportunity Commission

May 9, 2013

0120120897 (E.E.O.C. May. 9, 2013)

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

,
Complainant,

v.

Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Drug Enforcement Administration),
Agency.

Appeal No. 0120120897

Agency No. DEA-2011-00220

DECISION

Complainant filed an appeal with this Commission from the Agency's decision dated October
25, 2011, dismissing her 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. For the following reasons, the Commission REVERSES the Agency’s final
decision and REMANDS the matter for further processing in accordance with the Order listed
below.

BACKGROUND

The record reveals that Complainant worked as an Administrative Officer in Islamabad,
Pakistan from February 2006 through May 2008. Complainant was reassigned from Pakistan
to the United States on May 16, 2008. When she returned to the United States, she was placed
in an “overhire” position.

Complainant filed a formal complaint dated February 2, 2011. The Agency defined
Complainant’s complaint as alleging that Complainant was subjected to discrimination based on
race (African-American), disability, and in reprisal for prior protected EEO activity when:

From January 14, 2008, to August 25, 2010, Complainant was discriminated against
when her repeated requests for a curtailment/reassignment, along with requesting to be
converted from overhire to permanent status, were stalled by management and the
Human Resources Office.

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The Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for
untimely EEO Counselor contact. The Agency noted that on March 1, 2008, Complainant
contacted the EEO Staff, Drug Enforcement Administration (DEA), at Headquarters to discuss
filing an EEO complaint. The Agency noted Complainant was informed by the EEO Staff that
because her tour of duty was overseas in Pakistan and because DEA did not have counselors
stationed overseas, she should contact the U.S. Department of State to seek and pursue EEO
Counseling. The Agency noted that Complainant did not pursue her complaint with the
Department of State nor follow-up with DEA at that time.

The Agency stated that on August 30, 2010, Complainant re-contacted the EEO Staff, DEA, at
Headquarters, to discuss her initial contact and complaint, which dated back to March 1, 2008.
The Agency noted that on September 17, 2010, Complainant contacted an EEO Counselor, and
the initial interview took place on October 17, 2010.

The Agency explained that on June 16, 2011, and August 16, 2011, the EEO Staff requested
that Complainant provide an explanation for her delay in presenting her allegation to an EEO
Counselor. The Agency noted that on those dates, Complainant advised that her reason for not
pursuing her complaint with the Department of State was that because she thought it was
required that she physically be in Pakistan along with the discriminating officials. The Agency
noted that Complainant stated that during the same period she became disconcerted and
frustrated by management discrediting her, and she said she chose to resolve the matter herself
rather than pursue it through the EEO Complaint process. The Agency noted that Complainant
stated that on April 27, 2011, she was converted from an overhire status to a permanent
position in the Foreign Personnel Support Unit at Headquarters, where she remains to date.

The Agency found Complainant did not seek EEO counseling until August 30, 2010, a period
of more than two years after she requested curtailment from the Islamabad Country Office and
from when she had taken notice (shortly after May 2008) that similarly situated employees
were being converted from overhire to permanent status. Thus, the Agency determined
Complainant’s August 25, 2010 EEO Contact was beyond the 45-day limitation period.

In addition, the Agency dismissed Complainant’s claim regarding being placed in an overhire
status from May 2008 to April 26, 2011, for failure to state a claim. Specifically, the Agency
stated that there is no difference between an overhire and permanent employee with regard to
rights, responsibilities, privileges, and protections. Thus, the Agency found Complainant
failed to show that she suffered a personal harm or loss as a result of serving in an overhire
status position from May 2008 to April 26, 2011.

ANALYSIS AND FINDINGS

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.
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3
05931049 (April 21, 1994). When the complainant does not allege he or she is aggrieved
within the meaning of the regulations, the agency shall dismiss the complaint for failure to state
a claim pursuant to 29 C.F.R. § 1614.107(a)(1). With regard to complaints alleging
discrimination in retaliation for prior protected EEO activity, the Commission interprets the
statutory retaliation clauses “to prohibit any adverse treatment that is based on a retaliatory
motive and is reasonably likely to deter the charging party or others from engaging in
protected activity.” EEOC Compliance Manual Section 8 “Retaliation” No. 915.003, at 8-13,
8-14 (May 20, 1998).

Where a complaint does not challenge an agency action or inaction regarding a specific term,
condition or privilege of employment, a claim of harassment is actionable only if, allegedly,
the harassment to which Complainant has allegedly been subjected was sufficiently severe or
pervasive to alter the conditions of Complainant's employment. A complaint should not be
dismissed for failure to state a claim unless it appears beyond doubt that Complainant cannot
prove a set of facts in support of the claim which would entitle him to relief. The trier of fact
must consider all of the alleged harassing incidents and remarks, and considering them together
in the light most favorable to the complainant, determine whether they are sufficient to state a
claim. Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077 (March 13, 1997).

Upon review, we find the Agency misdefined Complainant’s complaint. The record reveals
Complainant worked as an Administrative Officer in Islamabad, Pakistan from February 2006
through May 2008. Complainant noted the State Department sent her on a medical evacuation
(MEDEVAC) in December 2007, and that the Country Attaché was furious she was leaving.
She explained that when she returned in January 2008, she was caught between a difficult
position based on her race, reprisal, and the MEDEVAC. Complainant noted that in a request
for curtailment sent to the Regional Director detailing her allegations of harassment, she
included an electronic mail she sent on September 6, 2007, to the Country Attaché asking for
assistance with a co-worker. In the electronic mail Complainant stated, “I’m this close to
blowing my brains out. I need help!!” Complainant explained on February 11, 2008, she was
contacted and visited by an Islamabad Embassy Nurse who told her she was leaving on a
MEDEVAC because of a memorandum she submitted to management indicating she was going
to “blow my brains out.” Complainant stated at that time she did not know she would never
be allowed to return to her work in Pakistan.

In her formal complaint, Complainant stated that she requested a curtailment from her position
in the Islamabad Country Office on January 14, 2008, due to a hostile work environment.
Complainant stated that she was subjected to different standards than other employees.
Complainant also stated she was continually retaliated against and harassed for submitting a
request for a curtailment of her Pakistan assignment due to a hostile work environment through
August 25, 2010. Complainant noted that on May 16, 2008, she was reassigned from Pakistan
as an Administrative Officer GS-341-12 to International Operations as an Administrative
Support Specialist GS-301-11.

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Among the incidents alleged in her harassment claim, Complainant stated that after her May
16, 2008 reassignment, Person A, the Chief of the Foreign Personnel Support Unit made
comments to her within earshot of others saying that, “people are going around threatening to
blow their brains out” while pointing his index finger with his thumb pointed upward to the
side of his head.

Complainant stated Person A also told her numerous times that “we don't reassign problems”
and stated “[she] need[ed] to go to EAP” (Employee Assistance Program) before he would
consider her for reassignment.

Complainant noted that on June 28, 2010, she submitted a memorandum to four management
personnel and Person B to request a reassignment. She stated that Person A then came over to
her desk irate and angry over the memorandum.

Complainant noted that on June 29, 2010, she informed Person A that she would no longer
perform the Foreign Training Program Manager (FTPM) duties for a co-worker. She stated
that Person A called her into his office and threatened to write her up for refusing to do the co-
worker’s job and threatened to have her fired.

Complainant stated that in July 2010, she was still trying to secure a reassignment. As a
remedy for her complaint, Complainant requested that she be reassigned into a permanent
position. In addition, Complainant noted that in July 2011, when Person C became the Chief
of the Foreign Administrative Support Section (OGA), she told him she was performing the
duties of the FTPM and that she wanted to be reassigned. Complainant stated that he told her
to contact Human Resources and he would see what he could do. Complainant stated she was
ignored by Human Resources. She stated she asked Person C for his assistance but he did not
help her. Complainant stated that she was continually retaliated against and harassed for
submitting her initial request for a curtailment due to a hostile work environment. She alleges
her career has been stalled for the last three years based on her request for a curtailment.

Upon review, we find Complainant stated an ongoing claim of a hostile work environment.
We find the incidents alleged are sufficiently severe or pervasive to constitute an actionable
claim of harassment.

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 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 45-
day limitation period is triggered. See Howard v. Dep’t 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. McLouglin v. Dep’t of the Treasury, EEOC Request
No. 05A01093 (April 24, 2003).
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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)).

We note that Complainant contacted an EEO Counselor with an intent to begin the EEO
process on August 30, 2010. We find the incidents of alleged harassment occurred from
January 14, 2008, to August 25, 2010, which makes Complainant’s August 30, 2010 contact
timely. Even using the Agency’s initial EEO Counselor contact date of September 17, 2010,
we still find the EEO Counselor contact timely.

CONCLUSION

Accordingly, the Agency’s final decision is REVERSED and the complaint as redefined as
alleging harassment is REMANDED to the Agency for further processing in accordance with
the Order herein.

ORDER

(E0610)
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 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
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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).

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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

(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

May 9, 2013
Date