Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJul 17, 2014
0120141651 (E.E.O.C. Jul. 17, 2014)

0120141651

07-17-2014

Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.


Complainant,

v.

Ray Mabus,

Secretary,

Department of the Navy,

Agency.

Appeal No. 0120141651

Agency No. 14-00027-00493

DECISION

Complainant filed a timely appeal with this Commission from the Agency's final decision dated February 19, 2014, 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 Procurement Analyst at the Agency's Installation and Logistics, Naval Support Facility in Arlington, Virginia.

On October 28, 2013, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.

On December 31, 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 and national origin when1:

1. on October 21, 2013, his supervisor treated him differently, by giving him extra work. She also informed him that no one is paid extra to review his work but requires him to review the work of other employees;

2. on November 14, 2013, during a meeting with his supervisor, she did not set clear evaluation standards for report documents to him;

3. on November 18, 2013, his supervisor accused him of falsely claiming his work experience in procurement;

4. from November 2012 to present, his supervisor berated, humiliated, and ridiculed him during division meetings, when Complainant asks questions for clarification; and

5. in April 2013, his supervisor required him to submit advance notice when he requires the use of sick leave while other members of the staff are not required to do so.

The Agency dismissed claim 5 on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that the alleged discriminatory event occurred in April 2013, but that Complainant did not initiate EEO Counselor contact until October 28, 2013, which was beyond the 45-day limitation period.

The Agency also dismissed claims 1 - 4 for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1), finding that he was not aggrieved.

The instant appeal followed.

ANALYSIS AND FINDINGS

Claims 1 - 4 (failure to state a claim)

The Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment by dismissing claims 1 - 4 for failure to state a claim. A fair reading of his formal complaint, Complainant claimed that he was subjected to a series of related incidents of harassment from April 2013 through present. Complainant stated that that he is the only one on the team "asked to provide information of future medical appointments for my wife and myself;" the supervisor treated him differently by giving him extra work assignments and informing him that no one is paid extra to review his work but required him to review the work of other employees; his work load "has been evaluated by the standard which can be changed at will by [supervisor];" was falsely accused for claiming his work experience; and was constantly berated, humiliated and ridiculed by the supervisor at division meetings whenever he asked for clarification.

As a remedy, Complainant requested that the supervisor be removed from her management position; be reprimanded in writing; taking required training on protected classes; respect him as a professional; and that the harassment be ceased.

These matters, taken together, state an actionable claim of harassment. 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).

Claim 5 (untimely EEO Counselor contact)

The Agency also improperly dismissed claim 5 on the grounds of untimely EEO Counselor contact. The record reflects that Complainant initiated EEO Counselor contact on October 28, 2013. 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 October 29, 2013 EEO Counselor contact, as reflected in our above discussion of claims 1 - 4. Because a fair reading of the record reflects that the matter identified in claim 5 is part of that harassment claim, we find that the Agency improperly dismissed this claim 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

July 17, 2014

__________________

Date

1 For ease of reference, the Commission has re-numbered Complainant's claims as claims 1-5.

---------------

------------------------------------------------------------

---------------

------------------------------------------------------------

2

0120141651

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120141651

6

0120141651