0120161113
04-20-2016
Cythia Q.,1 Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cythia Q.,1
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120161113
Agency No. IRS-16-0042-F
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 11, 2016, dismissing a formal complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Tax Examining Technician at the Agency's Atlanta, Georgia facility.
On October 29, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On December 17, 2015, Complainant filed the instant formal complaint. Therein, Complainant claimed that she was subjected to harassment and a hostile work environment on the basis of disability.
On January 11, 2016, the Agency issued a final decision. The Agency determined that the formal complaint was comprised of the following two claims:
1. in June 2012, Complainant's manager told her co-workers about her medical condition; and
2. her manager repeatedly asked her to clean her desk area and made an issue out of her use of breaks, lunch and short periods away from her desk.
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 October 29, 2015, which it found to be beyond the 45-day limitation period for making timely EEO contact.
The Agency dismissed claim 2, pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency found that unless the conduct is severe, a single incident or group of isolated incidents will not be considered discriminatory harassment.
The instant appeal followed.
ANALYSIS AND FINDINGS
Claim 2 (failure to state a claim)
The Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment by dismissing claim 2 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 June 2012 through present.
In the instant formal complaint, Complainant stated that she was subjected to ongoing harassment when "after undergoing surgery, I returned to work to find out that my personal business had been exposed. I was [approached] by several co-workers finding that my [ex-manager] had told them why I was out on leave. I returned from medical leave in June 2012 to find that everybody was aware of why I was out. Not to mention the looks I was getting, and the conversations that were taking place about me...I feel disclosing my health issues has caused me STRESS, DISCOMFORT, AND DISTRUST. Trust will forever be an issue form this point on. I was picked on, on a daily basis about something. [Manager] always had something to say bad about me. Every day she was [harassing] me about the cleaning of my desk, floor area...I feel like have been BETRAYED by managers/management as a whole [emphasis in its original]."
Further, Complainant states that the manager "stress[es] me out on a daily basis is very unbearable. [A]t the time, [I]was going through radiation, having surgery/chemotherapy all at the same time. And. . . she ride[s] me like an animal, [which is] is very unruly and not acceptable at all...which at time have caused me to perform, sometimes not at my best. "
As a remedy, Complainant requested that the manager be removed and compensatory damages. These matters, taken together, state a cognizable claim of harassment. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993).
Claim 1 (untimely EEO Counselor contact)
The Agency improperly dismissed claim 1 on the grounds of untimely EEO Counselor contact. Complainant initiated EEO Counselor contact on October 29, 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)).
Various incidents comprising Complainant's hostile work environment claim occurred within the 45-day time period preceding Complainant's October 29, 2015 EEO Counselor contact, as discussed above. A fair reading of the record reflects that the matter identified in claim 1 is part of that harassment claim. We therefore find that the Agency improperly dismissed this claim on the grounds of untimely EEO Counselor contact.
Moreover, some of the matters raised in the instant formal complaint can be arguably construed as a denial of reasonable accommodation. EEOC Compliance Manual, Section 2, "Threshold Issues," EEOC Notice 915.003, at 2-73 (July 21, 2005), provides that "because an employer as an ongoing obligation, to provide a reasonable accommodation, failure to provide such an accommodation constitutes a violation each time the employee needs it." See e.g. Peacock v. USPS, EEOC Appeal No. 0120082372 (July 31, 2008).
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 and violation of the Rehabilitation Act) 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
April 20, 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.
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