[Redacted], Latarsha A, 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2022004345 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Latarsha A,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022004345 Agency No. ARTRADOC22MAY02515 DECISION On August 10, 2022, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 18, 2022 final decision dismissing her equal employment opportunity (EEO) complaint alleging 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 for the Agency as an Equal Employment Specialist, GS-9, at the Eastern Washington University Reserve Officers’ Training Corps office in Cheney, Washington. On May 16, 2022, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On June 23, 2022, Complainant filed a formal EEO complaint. The Agency determined that Complainant claimed that the Agency discriminated against her based on her sex (female) and in reprisal for prior protected EEO activity2 when: 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. 2022004345 2 1. on or about May 2022, the Lieutenant Colonel denied Complainant a Civilian Service Award after promises were made she would receive one; 2. from February through March 2022, after Complainant put in a notice of accepting a new position, Complainant’s supervisor revoked her telework, required daily reports of her work, and directed her to work outside of her position description and work hours; 3. from August 2020 through February 2022, Complainant’s supervisors failed to handle Complainant’s complaints concerning a co-worker constantly bullying her, forging Complainant’s signature, and trying to force Complainant to engage in illegal practices for recruitment; and 4. from July 2021 through October 2021, Complainant was intermittently asked to work during her maternity leave without pay. On July 18, 2022, the Agency issued a final decision dismissing the formal complaint in its entirety. First, the Agency dismissed claims b through d for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency found that Complainant’s initial EEO Counselor contact was on May 16, 2022, which it found to be well beyond the regulatory 45-day limitation period. Second, the Agency dismissed claim a for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency determined that the record reflected that the Lieutenant Colonel had recommended to provide Complainant a performance cash award on May 11, 2022. The instant appeal followed. ANALYSIS AND FINDINGS Failure to State a Claim (claim a) 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 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). The regulation 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. The Agency improperly dismissed Complainant’s allegation that she was denied a Civilian Service Award. The record as well as Complainant’s statements on appeal, reflect that Complainant has alleged a loss or privilege of employment. 2 The Agency asserts that Complainant had no record of prior EEO activity. 2022004345 3 Specifically, Complainant alleges that she was denied a Civilian Service Award, which was a momentary award. Additionally, on appeal, Complainant clarifies that she believed that the denial of this monetary award was another instance of retaliation by management, because it occurred after she had notified management that she was leaving the Agency earlier that year. Complainant further clarifies on appeal, that she was notified as early as April 2022 (and not in May 2022), that she would not receive the award. Therefore, we reverse the Agency’s dismissal of this claim and find that Complainant is an aggrieved individual as she has alleged a present harm for which there is a remedy. Untimely EEO Counselor Contact (claims b - d) 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 personnel action, within forty-five (45) days of the effective date of the action. Here, the Agency indicates that the last alleged discriminatory incident occurred on February 2022 and Complainant failed to initiate EEO Counselor contact within the 45-day limitation period. However, as previously explained, Complainant also alleged that she was denied a monetary award in May 2022. We note that on appeal, Complainant asserts that she first became aware of management’s decision to deny her the award in April 2022. Consequently, Complainant’s alleged April/May 2022 denial of her monetary award was the last alleged discriminatory act at issue. In either case, Complainant’s May 16, 2022, EEO Counselor contact occurred within the 45 days from when she was allegedly denied the momentary award in April/May 2022.3 Additionally, a fair reading of Complainant’s statements on appeal as well as the formal complaint indicated that Complainant was collectively alleging that she was subjected to retaliatory harassment when management revoked her telework, required daily reports of her work, required her to work outside of her position description and work hours, and denied her a momentary award all occurring soon after she notified management that she was leaving the Agency following management’s alleged failure to stop Complainant from being harassed by a co-worker. Because at least one of the proffered allegations (the denial of the monetary award) occurred within the 45-day limitation period, we find that in this instance, Complainant timely contacted an EEO Counselor on May 16, 2022. See National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002) (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). 3 Despite the timeliness of Complainant’s EEO Counselor contact, we note on appeal that Complainant asserted that she was unaware of the 45-day limitation period and had not received any EEO training on this matter. The Agency did not offer any statements disputing Complainant’s assertion. 2022004345 4 Regarding Complainant’s arguments on appeal that the EEO Counselor omitted additional claims and bases she sought to raise during the pre-complaint process, on remand, the Agency shall provide Complainant the opportunity to clarify the extent of her claims. CONCLUSION The Agency’s final decision dismissing the formal complaint for the reasons discussed above is REVERSED. The matter is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER (E0618) The Agency is ordered to process the remanded claims (identified as an ongoing harassment claim) 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 (K0719) 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). 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). 2022004345 5 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 2022004345 6 Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 31, 2023 Date