0120160149
02-25-2016
Frederick A.,1 Complainant, v. Sylvia Mathews Burwell, Secretary, Department of Health and Human Services (National Institutes of Health), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Frederick A.,1
Complainant,
v.
Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services
(National Institutes of Health),
Agency.
Appeal No. 0120160149
Agency No. HHS-NIH-ORS-036-15
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 20, 2015, dismissing his 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
At the time of events giving rise to this complaint, Complainant worked as a Police Officer at the Agency's Division of Police, National Institute of Health facility in Bethesda, Maryland.
On January 22, 2015, Complainant contacted an EEO Counselor. On May 13, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to a hostile work environment and discrimination on the bases of race (African-American), color (Black), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. In March and April 2010, Complainant was denied training in a commercial explosives class, while others, with less need for the training, were allowed to attend;
2. On or about January 27, 2012, Complainant was incorrectly accused of failing to properly update the roster in the agency's "P" drive;
3. On or about February 21, 2012, Management did not complete the leave calendar to permit Complainant to attend the 2012 B.A.T.T.L.E. conference;
4. On or about December 12, 2012, Complainant's request for leave was denied, while other similarly situated officers' leave requests were approved;
5. On or about December 13, 2012, Complainant was demeaned while on a telephone conversation regarding the approval of his leave requests;
6. On or about February 16, 2013, during several phone conversations, Complainant was spoken to in a hostile, aggressive, and demeaning manner;
7. On or about March 14, 2013, during a meeting, Complainant was questioned in a hostile, aggressive, and demeaning manner;
8. On or about May 16, 2013, management responded to Complainant in a negative manner when he corrected an error in an email;
9. From August 4, 2013 to August 25, 2013, Complainant's leave request was not acknowledged which caused him problems in executing his duties.
10. On or about December 2, 2013, Complainant was denied training on the basis that he had previously attended a similar training. However, the decision was reversed;
11. On or about March 18, 2014, Complainant was informed that his official duty time could not be approved;
12. On or about April 1, 2014, Complainant's official duty time was changed from Sunday to Tuesday without authorization;
13. On or about May 8, 2014, Complainant's Official duty time was cancelled while he was required to conduct Police Day K-9 demonstrations;
14. On or about May 28, 2014, Complainant was counseled for wearing an under armor fitted shirt under his uniform;
15. On or about June 11, 2014 to the present, the Agency failed to take appropriate corrective action against management for creating a hostile work environment and retaliating "against officers who speak out;"
16. On or about August 4, 2014, Complainant was criticized for processing his requests for official time related to his duties;
17. On or about August 7, 2014, Complainant was denied training based upon the assertion that he had to attend to a court related citation;
18. On August 8, 2014, Complainant was denied reconsideration of his training request;
19. On or about August 11, 2014, Complainant was not provided a copy of his CIT form;
20. On or about September 23, 2014 and October 9, 2014, Complainant's work status was questioned;
21. On or about October 15, 2014, Complainant's request to return to Sunday as his official duty time was denied and he was also deprived of the opportunity to train another canine unit.
22. On or about October 17, 2014, Complainant was asked to submit his confidential medical information;
23. Ongoing from October 18, 2014 to the present, the Agency failed to take appropriate corrective action against management for its alleged continued harassment and continuing requests for Complainant's medical documentation;
24. On or about October 22, 2014 to the present, the Agency failed to take appropriate corrective action against management for creating a hostile work environment and for replying, in response to the allegation, that they have a different managerial style;
25. On or about October 2014, during a supervisory meeting, criticisms were directed to Complainant for not providing his medical documentation; and
26. On December 9, 2014, Complainant learned that management "revealed inappropriate comments and personal opinions about his off duty matters."
The record shows that Complainant reported his hostile work environment claims to management on June 11, 2014 and on October 22, 2014, but Complainant claims that management took no effective action to address Complainant's concerns.
The EEO Counselor's Report reflects that Complainant's initial EEO contact date was January 22, 2015. The date of the last alleged discriminatory incident was December 9, 2014. The EEO report also indicated that Complainant was alleging a hostile work environment and harassment and had offered the above referenced incidents in support of his claim.
With regard to the most recent incident, on December 9, 2014, the Sargent informed Complainant that, on October 22, 2014, Complainant's immediate supervisor (the Lieutenant) received a telephone complaint pertaining to Complainant, from one of Complainant's neighbors. The neighbor's complaint concerned an off-duty matter. The Lieutenant reported the complaint to the Major via email. In the relaying of the information, the Lieutenant "added inappropriate comments and personal opinions" to his write-up, that was then sent to the Major. Specifically, the Lieutenant added an accusation that Complainant refused to disclose his dog's name to a member of the public and included the comment "This type of conduct negatively impacts the Division of Police ... as well as defies the Community Policing theory and training that [Complainant] received as a collateral Community Policing officer. To add the fact that [Complainant] as a representative and Chairman of the NIH FOP, has a greater negative influential impact to the FOP Union members."
The Sargent told Complainant that he did not intend to take action on the complaint which the neighbor made against Complainant, but he wanted to make Complainant aware of the complaint that was made against him. Complainant then talked with the Major, who told Complainant that she would like Complainant to provide a response for the record before closing the file.
The Agency Decision
On August 20, 2015, the Agency issued a final decision dismissing the complaint for untimely EEO contact for all of the claims with the exception of claim 15, 23 and 26. The Agency found that Complainant did not initiate contact within the 45 day limitation period with regard to the dismissed claims.
The Agency also dismissed claims 15, 23 to 24 and 26 for failure to state a claim. With regard to claims 15, 23 and 24, which alleged that the Agency failed to take appropriate corrective action against management, the Agency found that Complainant was not an aggrieved individual and, therefore, lacked standing to raise the claims. With regard to claim 26 (management made inappropriate comments about his off duty hours), the Agency concluded that Complainant has failed to show how the incidents alleged some direct harm which affects a term, condition or privilege of employment. The Agency dismissed the entire complaint.
This appeal followed.
ANALYSIS AND FINDINGS
Untimely EEO Contact
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 a personnel action, within forty-five (45) days of the effective date of the action.
On appeal, Complainant argues his claims are timely because he made contact within 45 days of the last alleged incident. In addition, Complainant is alleging that he has been subjected to an ongoing pattern of discriminatory and retaliatory harassment that has taken many forms including the 26 examples listed above. He maintains that he offered the list of incidents to provide examples of the ongoing harassment over several years. He argues that he has stated a claim because he showed that he learned, on December 9, 2014, that, because of his race and color and retaliation, his supervisor (Lieutenant) made disparaging and unnecessary comments regarding a matter that was raised by one of the Complainant's neighbors with regard to an off-duty matter.
The Supreme Court has held that a complainant alleging 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. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (June 10, 2002). In this case, Complainant's January 22, 2015 EEO counselor contact was timely made from one of the events he proffers as examples of the alleged ongoing harassment/hostile work environment and reprisal.
For these reasons, we find that the Agency failed to meet its burden of establishing that Complainant's contact was untimely made with regard to the alleged claims 15 to 26, from June 11, 2014 to December of 2014. We find, however, that the incidents alleged prior to June 11, 2014 (claims 1 to 14) were discrete unrelated acts and were not timely raised. Those incidents, however, may be used as background.
Failure to State a Claim
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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, 1614.106(a). The Commission's federal sector case precedent 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 (April 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a) (1).
The Commission has held that where, as here, with regard to the most recent alleged incident, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). In this case, a fair reading of the complaint shows that Complainant has alleged ongoing harassment when his supervisor treated an off-duty matter as an on-duty offense and offered his personal opinions verbally disparaging Complainant in an email sent to his superior. Complainant also alleges that he was subjected to unwarranted criticism, denied training, had his official duty time changed, was repeatedly asked for his medical documentation and that management failed to address his concerns of the ongoing hostile environment for "officers who spoke out". Essentially, he is alleging that, because of his race, color and in retaliation for reporting a hostile environment in June and October of 2014, he was subjected to different terms and conditions and harsher scrutiny. We find that Complainant's allegations 15 to 26 are sufficient to state a claim of a hostile work environment on the basis of race, color and retaliation.
With regard to the claims 15 to 26, therefore, we find that Complainant has shown an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Upon review, the Commission finds that Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a) (1) for failure to state a claim.
Accordingly, we MODIFY the Agency's final decision. We REVERSE the Agency's final decision dismissing Complainant's complaint with regard to claims 15 through 26 for the period June through December of 2014. We AFFIRM the Agency's decision with regard to claims 1 to 14. We hereby REMAND the complaint to the Agency for further processing in accordance with this decision and the Order below.
ORDER
The Agency is ordered to process the remanded claims 15 through 26 in accordance with 29 C.F.R. � 1614.108. The remanded claims include all claims covering the period June 2014 to through December 2014. 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 (M0815)
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 tends 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 Chap. 9 � VII.B (Aug. 5, 2015). 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).
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. If you file a request to reconsider and also file a civil action, 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 25, 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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