EEOC Appeal No. 0120151984
01-29-2016
Milissa H. v. Dep't of the Army
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Milissa H.,1
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120151984
Agency No. ARBELVOIR15JAN00277
DECISION
Complainant filed a timely appeal with this Commission from the Agency's March 23, 2015 decision, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Financial Advisor at the Agency's Soldier and Family Assistance Center (SFAC) facility in Fort Belvoir, Virginia.
Complainant contacted an EEO counselor regarding the events at issue on January 27, 2015. On March 10, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), color (Black), age (55), and "reprisal (August 2014 and December 5, 2014)" for prior protected EEO activity, when:
1. On July 17, 2014, Complainant's co-worker "kicked her while at work and made discriminatory statements" to Complainant;
2. The Director, Army Community Services, did not take corrective action against the co-worker and, after Complainant reported the co-worker's actions to the Director, the Director used profanity in responding to Complainant;
3. Management failed to take appropriate action to discourage the ongoing insulting ageist and racist remarks made to Complainant by her co-worker;
4. On July 14, 2014, Complainant wrote an email to management concerning the hostilities she faced at work;
5. On July 14, 2014, Complainant received a retaliatory Memorandum of Record; and
6. In November of 2014, her performance evaluation was downgraded and management did not finalize the evaluation or provide Complainant with an opportunity to rebut the evaluation or provide comments.
The EEO Counselor's Report notes that the last alleged discriminatory action occurred on December 2, 2014. The 45th calendar after the December 2, 2014 date was January 16, 2015. Complainant's contact was after that 45 day period for filing. The record shows, however, that the subject evaluation, that was due on October 31, 2014, had not been completed as of March 20, 2015, according to an email dated March 20, 2015 sent to Complainant from Complainant's supervisor. The supervisor told Complainant that "management is just now addressing [Complainant's] request to dispute the evaluation that was due on October 31, 2014 and has not been completed." The Agency had not taken actions to "finalize the performance awards attached to the evaluation" or to respond to Complainant's request to be allowed to add comments to the evaluation itself, or the opportunity to rebut the evaluation.
The Agency issued a final decision dismissing the complaint for two reasons: untimely EEO contact and failure to state a claim. With regard to failure to state a claim, the Agency reasoned that the alleged actions "do not constitute a direct, personal deprivation or harm at the hands of the employing agency." The Agency also stated that the issues identified herein as 3 and 4 were previously raised in Complainant's earlier formal complaint ARBELVOIR14Aug03162.2 The Agency found that the claims were the same claim as had been previously decided. In addition, the Agency dismissed the complaint because it determined the claim lacked the requisite specificity.
This appeal followed.
ANALYSIS AND FINDINGS
On appeal, Complainant asserts that "the retaliation is ongoing" and EEO contact was timely because the harm is ongoing. She claims that she continues to suffer tangible, adverse effects on her employment due to the Agency's actions.
Untimely EEO 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.
In this case, the record shows that Complainant made numerous contacts with Agency officials with regard to her ongoing claims, including the filing of her initial complaint, which the Agency refused to accept. It is undisputed that, on July 14, 2014, Complainant provided management with written notification that she believed that she was experiencing a hostile work environment.
In addition, Complainant is alleging that she has been subjected to an ongoing pattern of discriminatory and retaliatory harassment that has taken many forms including having her rating downgraded, being kicked by a coworker, verbal harassment and profanity by a supervisor, and a retaliatory denial of due process when the Agency refused to address her concerns, or provide her with an opportunity to challenge her evaluation. The March 20, 2015 email demonstrates that the harm was ongoing because the Agency had not finalized her evaluation or responded to her request to be allowed to file a rebuttal. 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 Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (June 10, 2002). In this case, Complainant's January 25, 2015 EEO counselor contact was timely made from some of the events she proffers as examples of the alleged ongoing harassment/hostile work environment.
For these reasons, we find that the Agency failed to meet its burden of establishing that Complainant's contact was untimely made with regard to the alleged claims from July 14, 2014 and ongoing.
Failure to State a Claim
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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, 1614.106(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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
Further, the Commission has held that where, as here, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). In this case, a fair reading of the complaint shows that Complainant has alleged ongoing harassment when her supervisor failed to address the physical misconduct of her co-worker, cursed at her, issued her a Memorandum for the Record, downgraded her performance evaluation without documentary support, failed to finalize his evaluation and failed to provide Complainant with an opportunity to attach rebuttal comments. She further claims that the EEO representative told her that he had no time to speak with her concerning her claims. We find that Complainant's allegations are sufficient to state a claim of a hostile work environment.
Complainant has shown an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Upon review, the Commission finds that Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is vacated. The complaint is hereby remanded to the Agency for further processing in accordance with this decision and the Order below.
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.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
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 (M0815)
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, 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).
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
January 29, 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 The record shows that the Agency dismissed her initial complaint for untimely EEO contact. The claims were not investigated or decided.
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