0120131068
06-14-2013
Edith Taylor-Allums, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (National Institutes of Health), Agency.
Edith Taylor-Allums,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(National Institutes of Health),
Agency.
Appeal No. 0120131068
Agency No. HHS-NIH-0485-2012
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated December 5, 2012, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Program Specialist at the Agency's Clinical Center in Bethesda, Maryland.
On September 24, 2012, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On October 31, 2012, 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, national origin, sex, religion, disability, and age when:
1. on August 24, 2012, she was denied leave under the Family Medical Leave Act (FMLA), and her medical record were reviewed and discussed with her supervisor;
2. on March 8, 2012, she was written up by her supervisor for requesting leave for surgery;
3. since February 7, 2012, she is continually denied leave under FMLA and Leave Without Pay (LWOP); and
4. she cannot transfer her telephone when she teleworks.
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. Specifically, the Agency found that claims 1 - 3, it constituted a collateral attack on the FMLA process. Specifically, the Agency stated that Complainant should have raised her allegations through the FMLA process, not through the EEO process.
With respect to claim 4, the Agency dismissed Complainant's telework claim for failing to raise this matter with an EEO Counselor and is not being like or related to a matter raised during counseling, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency found assuming claim 4 states a claim, it does not state a viable claim of harassment. The Agency further found that unless the conduct is severe, a single incident or group of isolated incidents will not state a claim of discriminatory harassment.
The Agency also dismissed claim 2 on alternative 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 September 24, 2012, which was beyond the 45-day limitation period.
The instant appeal followed.
ANALYSIS AND FINDINGS
Claims 1 - 4
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 the matters identified in those claims reflect that Complainant claims that she was subjected to a series of related harassing incidents from February 2012 through August 2012. In her formal complaint, Complainant requested that to be placed in a different job, compensation, and the Memorandum of Understanding removed from her personnel file as a remedy. We note that Complainant, on appeal, states that she is subjected to ongoing harassment. These matters, taken together, state an actionable claim of harassment. By alleging a pattern of harassment regarding allegations 1 - 4, Complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993).
The Agency determined that claim 1 -3 constitute a collateral attack on a separate process (denial of FMLA leave). The Commission acknowledges that claims 1 and 3 make reference to denial of FMLA leave, although claim 2 does not. However, those claims also address denial of leave without pay, improper review and discussion of her medical records, and being written up by a supervisor, which are not matters that constitute a collateral attack. To the extent that claims 1 - 3 can be construed, in part, as a collateral attack on the FMLA process, such discrete "FMLA denial" issues would not state a claim. However, such matters can nevertheless be identified as part of the broader harassment claim, and should be considered as background evidence.
Furthermore, we find that the Agency improperly dismissed claim 4 on the grounds that Complainant did not seek EEO counseling regarding these matters, and that they are not like or related to matters for which Complainant underwent EEO counseling. We find that to the extent that these matters were not expressly raised during EEO counseling, they are nevertheless like or related to matters for which Complainant underwent EEO counseling.
Claim 2
The Agency also improperly dismissed claim 2 on the grounds of untimely EEO Counselor contact. The record reflects that Complainant initiated EEO Counselor contact on September 24, 2012. 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 harassment/hostile work environment claim occurred within the 45-day time period preceding Complainant's September 24, 2012 EEO Counselor contact, as discussed above. Because a fair reading of the record reflects that the matter identified in claim 2 is part of that harassment claim, we find that the Agency improperly dismissed it on the grounds of untimely EEO Counselor contact.
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's formal complaint, 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 claim (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).
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 14, 2013
__________________
Date
2
0120131068
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
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