0120160099
01-28-2016
Ciera B.,1 Complainant, v. Julian Castro, Secretary, Department of Housing and Urban Development, Agency.
Ciera B.,1
Complainant,
v.
Julian Castro,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 012016099
Agency No. HUD-00075-2015
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated September 4, 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.
BACKGROUND
During the period at issue, Complainant worked as a Program Assistant at the Agency's Denver, Colorado facility.
On May 26, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On July 28, 2015, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the basis of race (African American) when:2
1. from July 2014 through January 2015, she was subjected to ongoing discriminatory treatment;
2. on June 6, 2015, she was required to cover for a co-worker who was on leave;
3. on July 12, 2015, when she inquired about her access to the "Chums" system, she was informed that she would be long gone before she receive access; and
4. she alleged that neither management nor her co-workers speak or interact with her.
Complainant provided a detailed narrative which accompanied her formal complaint form. Therein, Complainant stated that from the time she began working in July 2014, she perceived that co-workers would ignore her whenever she spoke to them, and that she soon began to feel as if she were an outcast. Complainant stated that she "cannot go without getting a nasty look, no comment, just staring at me with a blank look, or giving me a general answer. The view I get is that they really don't want to help me or speak to me." Complainant stated that at one point, a co-worker called Complainant and another co-worker "Frick and Frack," which Complainant perceived was a form of disrespect. Complainant made an unsuccessful attempt to resolve this matter with her manager.
In its September 4, 2015 final decision, the Agency dismissed claim 1 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 May 26, 2015, which it found to be beyond the 45-day limitation period.
Further, the Agency dismissed claims 2 - 4 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim, finding that Complainant was not aggrieved.
The instant appeal followed.
ANALYSIS AND FINDINGS
Claims 2- 4 (failure to state a claim)
The Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment by dismissing claims 2 - 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 July 2014 through present.
In the attachment to the instant formal complaint, Complainant states that she was subjected to ongoing harassment and that she had "to take [my] own time when I should not have to due to all this stress and humiliation for no reason than my race." For instance, Complainant states that when she and a named Caucasian employee started working for the Agency, they "both had to work and train together in order to learn the job. [Caucasian employee] whom was white was treated better than me. She was informed of the duties pertaining to the job that we were hired, before she would be the one that would deliver the information to me, the other co-workers would nor management would not speak to me. Every day I would come in the office, I would try to speak to everyone, but did not get the same treatment back. I started to feel like an outcast."
Further, Complainant states that when she asked a named Agency official "about my access to Chums since he was down here giving the new employee [employee] access. And he stated to me that I will be long gone before I get access to the system in front of everybody. As of this day July 22, 2015 co-workers or management still not speak, interact with me."
As a remedy, Complainant requested that she be removed from her division and be provided a money package so she could look for another job. 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 1 (untimely EEO Counselor contact)
The Agency also improperly dismissed claim 1 on the grounds of untimely EEO Counselor contact. The record reflects that Complainant initiated EEO Counselor contact on May 26, 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 May 26, 2015 EEO Counselor contact, as discussed above. Because a fair reading of the record reflects that the matter identified in claim 1 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, Director
Office of Federal Operations
January 28, 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 For ease of reference, the Commission has numbered Complainant's claims as claims 1 -4.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120143035
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120160099
7
0120160099