EEOC Appeal No. 0120160491
02-10-2016
Ardelia I. v. Dep't of the Army
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ardelia I.,1
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120160491
Agency No. ARDETRICK15JUN02830
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated September 30, 2015, 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.2
BACKGROUND
During the period at issue, Complainant worked as an Education Program Administrator at the Agency's Defense Center of Excellence for Psychological Health & Traumatic Brain Injury in Silver Spring, Maryland.
On June 24, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On August 13, 2015, Complainant filed the instant formal complaint. Therein, Complainant claimed that she was subjected to harassment and a hostile work environment on the bases of race, color, and in reprisal for prior EEO activity when:
1. on August 10, 2015, Complainant's supervisor asked her to attend a meeting to discuss her performance objectives. The supervisor indicated that if she does not attend the meeting she would be subjected to consequences for not following instructions. In addition, during the meeting, additional clerk duties were assigned to her and she refused to sign the changes on her performance objectives;
2. on June 17, 2015, the supervisor yelled at her during a meeting with her to discuss a "strategy" for the Professional Development Program. The supervisor also accused her of being unfriendly and of needing customer services skills;
3. on June 11, 2015, the supervisor excluded her from an apology email she sent out to all employees for failing to notify them of an ice cream social event;
4. on June 10, 2015, the supervisor excluded her from pertinent emails which pertained to the operation of the Professional Development Program which is managed by her and which impede her ability to perform her job; and
5. on July 15, 2014, she was denied an upward mobility opportunity by the Chief of Staff.
The Agency dismissed claims 1 - 4 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim, finding that Complainant was not aggrieved.
Further, 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 Complainant's initial EEO Counselor contact was on June 24, 2015, which it found to be beyond the 45-day limitation period.
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 her formal complaint, Complainant claimed that she was subjected to a series of related incidents of harassment from February 2011 through present.
In the attachment to the instant formal complaint, Complainant states that from February 2011 to June 2011, she engaged in prior protected activity which ended in a settlement in May 2014. Complainant stated at that time the Chief of Staff "was engaged in this past EEO activity...in July 2014 [Complainant's] inquired to [Chief of Staff] about 'upward mobility' and [Chief of Staff] replied via e-mail that the agency had no intention of expanding [Complainant's] scope or promoting [Complainant]."
Further, Complainant states when her supervisor started supervising her in February 2015, the supervisor created a hostile work environment "by making demeaning remarks, insults and by excluding [Complainant] from group e-mail and e-mail pertaining to the Professional Development & Training Program managed by [Complainant]." Specifically, Complainant states that on April 27, 2015, during a leadership training, her supervisor "made a sarcastic remark when the instructor (contractor) complimented [Complainant's] professionalism. [Supervisor] said sarcastically, 'yeah, she ([Complainant]) is so good and attentive' as she laughed."
We note that Complainant, on appeal, argues that she is subjected to ongoing harassment. For instance, Complainant states that on September 9, 2015, her supervisor asked her where she was from and she told the supervisor that she was "originally from Virginia. [Supervisor] said, 'you blacks from Virginia are uppity!'" Complainant further states that on September 17, 2015, her supervisor told her "you're one of those 'smarty' blacks from one of those large Virginia plantations aren't you?"
As a remedy, Complainant requested a new supervisor, "to have anything adverse written by [supervisor] removed from my personnel file," and compensatory damages. 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 June 24, 2015. 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 hostile work environment claim occurred within the 45-day time period preceding Complainant's June 24, 2015 EEO Counselor contact, as discussed above. 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 these claims on the grounds of untimely EEO Counselor contact.
Accordingly, we REVERSE the Agency's dismissal of the formal complaint for untimely EEO Counselor contact and for failure to state a claim, 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 claims (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).
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
February 10, 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 reflects that while the Agency's final decision is dated September 18, 2015, it is date-stamped as September 30, 2015.
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