0120162465
06-26-2018
Hiroko V.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service, (Headquarters), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Hiroko V.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service,
(Headquarters),
Agency.
Appeal No. 0120162465
Hearing No. 471-2014-00047X
Agency Nos. 66-000-0020-13 and 66-000-0002-14
DECISION
On June 30, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's February 25, 2016, final order concerning her equal employment opportunity (EEO) complaint alleging 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are (1) whether Complainant filed her appeal in a timely manner; (2) whether there are genuine issues of material fact that require a hearing before an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ); and (3) whether the AJ properly found that Complainant did not establish that the Agency discriminated against her on the bases of race, color, sex, disability, and reprisal for prior protected EEO activity when it did not permit her to return to work and allegedly subjected her to a hostile work environment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Postal Police Officer at the Agency's Detroit, Michigan, Division Headquarters. In formal complaints filed on October 1, 2013, and February 5, 2014, and subsequently amended and consolidated, Complainant alleged that the Agency subjected her to discrimination and a hostile work environment based on race (African American), color (Black), sex (female), disability, and reprisal for prior protected EEO activity. The Agency defined the accepted claims as follows:
1. she was not permitted to return to work July 1 and 2, 2013, and continuing for periods of time until the present;
2. on unspecified dates, male employees were permitted to take showers in the women's bathroom;
3. on unspecified dates, a co-worker told Complainant that a black female officer was starting to look like the monkey on her purse, and she looked like Whoopi Goldberg; the following day he said that she looked like Rick James; and
4. on unspecified dates, a periodical with pages about the KKK and skin heads was left on the table in the break room.
Complainant sought EEO counseling on July 3, 2013. She participated in an EEO mediation on August 28, 2013.
In June 2013, Complainant signed an Independence Day Holiday Schedule indicating her desire to work on July 4, 2013. She submitted a June 21, 2013, doctor's note excusing her from work until July 3, 2013, and she was on scheduled annual leave from June 22 to 28, 2013. On June 24, 2013, Complainant's first-level supervisor (S1) posted a holiday schedule listing employees who were "required to work on their holiday." The schedule listed Complainant for July 2, 2013, but she did not work on that day. Complainant was paid for eight hours of annual leave on July 1 and eight hours of holiday leave on July 2, 2013.
Complainant was off work from September 12 to October 4, 2013. On October 4, 2013, Complainant submitted a "Work/School Note" form in which her doctor (P1) checked the spaces for "Patient may return to work/school with no restrictions" and "Patient off work/school from 9/12/13 thru 10/4/13." She also submitted a "Postal Police Officer Y-06" form that listed her position description and job requirements. Complainant's doctor signed the form on October 1, 2013, and checked the box stating that there were no medical restrictions precluding full performance of the position's duties. Although the form stated, "Please attach medical documentation which supports your fitness determination," it appears that the doctor did not attach any documentation. According to Complainant, the Manager of the Postal Police Unit (S2) told her that the medical documentation was insufficient and that she needed to get clearance from the Agency's Medical Director to return to work.
S2 asked the Medical Director to obtain the appropriate medical documentation. On October 14, 2013, the Medical Director sent P1 a letter asking several questions about Complainant's condition. He re-sent the letter on October 24, 2013. Complainant signed a Patient Information Release Authorization on October 30, 2013. According to the Medical Director, Complainant subsequently told him that she was under the care of a number of physicians and that P1 was not the correct doctor to respond to the Agency's questions. She later told him that another doctor (P2) would call him. In a December 3, 2013, e-mail to Complainant, the Medical Director stated that he spoke with P2 on November 13, 2013, and that he had not yet received the documentation that P2 said that he would send. In a January 28, 2014, letter to Complainant, S2 stated that the Medical Director still had not received the requested documentation. P2 faxed detailed information to the Medical Director on January 29, 2014.
By letter dated January 30, 2016, S1 informed Complainant that she had been medically cleared to return to work.
Complainant has alleged that the Agency permitted male employees to take showers in the women's restroom. In her affidavit, in response to the EEO Investigator's question about the dates on which this occurred, Complainant stated, "On two occasions in 2012 one of the inspectors used the ladies' restroom and one of the Patrol Officers [CW1] actually took a shower." In her Response to the Agency's Request for Admissions, Complainant stated that she saw the Inspector and CW1 leave the restroom but "did not see any of them actually taking a shower." She also stated that she told S1 in 2012 that she had seen a lieutenant leave the women's restroom, that she told S2 in 2012 that she had seen CW1 leave the women's restroom, and that S2 told her that he had spoken with CW1 and CW1 had denied it.
With respect to her allegation that a White male co-worker (CW2) made comments about a black female co-worker (CW3), Complainant stated in her affidavit that CW2 was "questioned about it, and the activity stopped after that." She believed that the comments had been made in Summer 2012. Complainant, who stated that the comments were not directed at her, did not report the comments to management.
With respect to her allegation about the periodical, Complainant alleged that "the document was intentionally left open to the article about the KKK." She believed that the incident occurred in Summer 2012. According to Complainant, "[n]o one complained to management, and the incident was not repeated."
In addition, Complainant asserted that the Agency treated her less favorably than it treated a white female employee (CW4). In an April 2014 affidavit, Complainant claimed that the Agency permitted CW4 to return to work "and perform light duty for a period of time in 2013." In a November 2014 affidavit, Complainant claimed that the Agency permitted CW4 to work with an impairment in 2011. A PS Form 50 in the record states that CW4 retired from the Agency in February 2012.
The Acting Captain of Postal Police (S3) stated in an affidavit that he had no knowledge that a periodical with racially insensitive material was displayed at the Detroit Division. He noted, however, that he had seen the Southern Poverty Law Center's "Intelligence Report" in the break room "on numerous occasions" and that the periodical contains information about gangs and hate-based groups. S3 stated that he had no direct knowledge of any comments made by CW2. He believed that CW2 and CW3 were close friends, that they often joked with one another, and that management counseled CW2 about the alleged comments.
In his affidavit,2 S2 stated that the Agency scheduled Complainant to work on July 2, 2013, "because she signed the holiday work schedule." He also stated that Complainant did not work on July 1 and 2, 2013, because she submitted a doctor's note saying that she could not return to work until July 3, 2013. According to S2, a white male Postal Police Officer (CW5) who worked on July 1 and 2, 2013, used Family and Medical Leave Act (FMLA) Sick Leave Dependent Care on July 5 to 7, 2013. The Agency approved CW5's request for FMLA leave on July 5, 2013.
The Agency's Employee and Labor Relations Manual (ELM) Section 865 states that management may request documentation from employees who have been absent because of illness when management has a reasonable belief based on reliable evidence that the employee may be unable to perform the essential functions of the employee's position or may pose a direct threat to health or safety of the employee or others because of a medical condition. It also states that the requested documentation "must be detailed medical documentation and not simply a statement that an employee may return to work."
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. On June 1, 2015, the Agency filed a Motion for Summary Judgment. Complainant filed a response to the Agency's Motion on June 19, 2015, and submitted an unsigned, unsworn statement that, among other things, raised new allegations of discrimination. The AJ issued a decision without a hearing in favor of the Agency on February 9, 2016.
In her decision, the AJ found that there were no genuine issues of material fact or credibility and that summary judgment was appropriate in this case. She also found that the undisputed evidence did not support Complainant's allegations that the Agency discriminated against her and subjected her to a hostile work environment based on race, color, sex, disability or reprisal.
The AJ noted that Complainant, who requested and received annual and holiday leave for July 1 to 2, 2013, withdrew her claim for wages on those days. With respect to Complainant's claim that the Agency did not let her return to work after October 4, 2013, the AJ concluded that Complainant did not establish a prima facie case of discrimination. The AJ found that Complainant presented no evidence to support her assertion that she was similarly situated to CW4. In that regard, the AJ noted that there was no evidence regarding CW4's circumstances or whether CW4 failed to submit medical documentation. She further found that CW5 was not similarly situated to Complainant because CW5 took FMLA leave to care for a family member's illness, not his own.
In addition, the AJ determined that the Agency articulated a legitimate, nondiscriminatory reason for its action and that Complainant did not show that the articulated reason was a pretext for discrimination. The Agency did not permit Complainant to return to work after her absence because she did not comply with ELM 865 and did not submit sufficient medical documentation. Complainant did not show that S2 applied the ELM requirements to her differently from the way that he applied them to other employees or that he otherwise treated her differently from the way that he treated any other employee who had been absent for more than 10 days. The AJ rejected Complainant's argument that the Agency's reason was a pretext because the Agency had not shown that she posed a direct threat to herself or others. She stated that the Agency could obtain medical documentation to assess whether Complainant could perform the essential functions of her position or would pose a direct threat.
With respect to claims 2, 3, and 4, the AJ noted that the three alleged incidents occurred in 2012. Noting that Complainant did not initiate EEO counseling within 45 days of the incidents, the AJ found that the claims were untimely. The AJ determined that Complainant could not use claim 1, which Complainant raised in a timely manner, as the basis for finding that the other claims were timely. The incident alleged in claim 1 occurred more than a year before the incidents alleged in the other claims, the claim 1 incident was not similar to and had no connection with the other incidents, and the claims were too remote to be considered part of a timely hostile-work-environment claim. In addition, the AJ found that the new allegations that Complainant raised in her response to the Agency's Motion for Summary Judgment were untimely, not part of the claims accepted in the complaint, and not supported by the evidence.
Further, the AJ found that Complainant was not aggrieved by the incidents alleged in claims 2 and 3. The AJ noted that Complainant acknowledged that she had never seen a male employee using the shower in the women's bathroom, that she had seen male officers leaving the women's bathroom only twice, and that S2 had spoken with CW1. The AJ also noted that CW2's comments were not directed toward or about Complainant, that she never reported the alleged comments to any manager, that S3 stated that management counseled CW2, and that CW2 did not make any more comments after management counseled him.
With respect to claim 4, the AJ found that Complainant could not establish a basis for imposing liability on the Agency. Complainant did not report the matter to management, and the incident occurred only once. Noting that Complainant did not address this claim in her response to the Agency's motion for summary judgment, the AJ concluded that Complainant had not rebutted the Agency's statement of facts and arguments. The AJ found that the evidence did not support Complainant's allegation.
Finally, stating that the incidents at issue did not occur because of Complainant's protected bases, the AJ found that they did not constitute a discriminatorily hostile work environment. The AJ also found that the incidents were not sufficiently severe or pervasive to rise to the level of harassment and that there was no basis for imputing liability to the Agency.
The Agency issued a final order fully implementing the AJ's finding that Complainant did not prove that the Agency subjected her to discrimination as alleged. Complainant's attorney received the final order on March 3, 2016. On June 29, 2016, in response to an inquiry from Complainant's attorney, the EEOC Office of Federal Operations (OFO) informed the attorney that there was no record of an appeal for Complainant and no record of any facsimile transmission from the attorney on April 3, 2016. Complainant's attorney mailed an appeal and accompanying brief to the Commission on June 30, 2016.
CONTENTIONS ON APPEAL
In a June 30, 20l6, appellate brief, Complainant, through her attorney representative, asks the Commission to accept her appeal as timely filed. Complainant's attorney states that he attempted to fax the appeal to the OFO fax number at 3:11 p.m. on April 3, 2016. After receiving a notification that the fax failed, the attorney attempted to fax the appeal using a different machine. The attorney states that he believed that the second fax transmission had been successful because he did not receive any notification that the fax attempt had failed. He submits several documents, including a telephone bill reflecting that he placed two calls to the OFO fax number on April 3, 2016, and a "Fax Talk Fax Center Pro" sheet indicating that an April 3, 2016, fax attempt failed.
In addition, Complainant alleges that the Agency violated the Rehabilitation Act by making an improper disability-related inquiry and by not allowing her to return to work. She contends that the Agency had no legitimate reason to question her doctor's notes, which stated that she could return to work without restriction. She also contends that the Agency should not have prevented her from returning to work unless it could show that she posed a direct threat. In addition, Complainant asserts that "[s]he could have been brought to work in some limited capacity, just like" CW4. She argues that the Agency did not articulate a legitimate, nondiscriminatory reason for not returning her to work. In that regard, Complainant maintains that Agency's statement that her doctor's note was insufficient is too generalized and conclusory.
In its June 13, 2016, Opposition to Appeal Brief, the Agency states that it received Complainant's Form 573 Notice of Appeal, which was dated April 3, 2016, on April 7, 2016. It also stated that it received "Complainant's Response and Supporting Brief to Agency's Motion for Summary Judgment" on May 11, 2016. The Agency argues that Complainant did not file the brief in a timely manner. Although unclear, the Agency appears to argue that Complainant's appeal was untimely filed as well. The record does not contain an Agency response to the brief that Complainant submitted on June 30, 2016.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that both an AJ's decision to issue a decision without a hearing and the decision itself will be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, � VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Summary Judgment
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact-finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250 n.5. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
We find that the AJ appropriately issued a decision without a hearing. The record has been adequately developed, the parties engaged in discovery, Complainant had notice of the Agency's Motion for Summary Judgment, and she responded to the Motion. For the reasons discussed below, we find that, even assuming all material facts in the light most favorable to Complainant, a reasonable fact-finder could not find in her favor. There being no genuine issue of material fact, a decision without a hearing was appropriate.
Timeliness of Appeal
Pursuant to EEOC Regulation 29 C.F.R. � 1614.402(a), a complainant's appeal from an Agency's final decision or final order must be filed with the Commission within 30 days of receipt of the final decision or final order. If the complainant is represented by an attorney of record, then the 30-day time period is calculated from the receipt of the required document by the attorney. Id. � 1614.402(b). If the expiration of the 30-day period falls on a "Saturday, Sunday or federal holiday," timely filing of the appeal extends to the next business day. Id. � 1614.604(d). These time limits are subject to waiver, estoppel, and equitable tolling. Id. � 1614.694(c).
In this case, Complainant's attorney received the Agency's final order on March 3, 2016. Thirty days from that date is April 2, 2016, which was a Saturday. Therefore, Complainant had until Monday, April 4, 2016, to file her appeal. Complainant's attorney has submitted documentation showing that he attempted to fax something to the OFO fax machine on April 3, 2016, and the Agency acknowledges that it received Complainant's April 3, 2016, Notice of Appeal on April 7, 2016. Under these circumstances, we find that Complainant has presented adequate justification for an extension of the applicable time limit. In this regard, we find it reasonable to conclude that an attempt was made to file an appeal on April 3, 2016, and that Complainant's attorney thought the attempt was successful. Accordingly, we accept Complainant's June 30, 2016 appeal, which was filed one (1) day after the attorney discovered that his April 3rd submission had not been received.
Claim 1: Not Permitted to Return to Work
To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer's articulated reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511.
We assume, for purposes of analysis only and without so finding, that Complainant has established prima facie cases of discrimination based on race, color, sex, disability, and reprisal. We find that the Agency articulated a legitimate, nondiscriminatory reason for its action. The Agency did not permit Complainant to return to work because she did not submit sufficient medical documentation, pursuant to ELM 865, for management to determine whether she could perform her job.
Complainant has not created a genuine issue of fact concerning whether the articulated reason is a pretext for discrimination. As the AJ noted, Complainant has not shown that the Agency treated her less favorably than it treated similarly situated employees. Complainant presented no evidence that the Agency allowed any other employee who was absent for a length of time comparable to Complainant's absence to return to work without submitting sufficient medical documentation. Although she has asserted that the Agency treated CW4 more favorably, she has not shown that CW4 was absent for a comparable time or failed to submit medical documentation. Further, the record establishes that CW5 took FMLA leave for dependent care, not because of his own medical condition. The temporal proximity between Complainant's protected EEO activity and the Agency's decision not to let her return to work after October 4, 2013, does not establish pretext here, where there is no evidence of retaliatory animus. Further, the Agency allowed Complainant to return to work immediately after P2 provided the requested information. Accordingly, we find that Complainant did not establish that the Agency discriminated against her on the basis of race, color, sex, disability, or reprisal when it did not permit her to return her to work.
On appeal, Complainant alleges that the Agency made an impermissible disability-related inquiry. See 42 U.S.C. � 12112(d)(4)(A) (disability-related inquiries and examinations of employees must be job related and consistent with business necessity); 29 C.F.R. � 1630.14(c) (same); EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations Under the Americans with Disabilities Act (ADA), EEOC Notice No. 915.002, at Question 5 (July 27, 2000) (inquiry or examination is job related and consistent with business necessity when employer has a reasonable belief, based on objective evidence, that employee's ability to perform essential functions will be impaired or employee will pose a direct threat because of a medical condition). id. at Question 17 (employer may make disability-related inquiries necessary to assess employee's ability to work when employee who has been on leave for medical condition seeks to return to work). Complainant, however, did not raise this allegation in her complaint and did not object to the Agency's definition of the accepted claims. Therefore, this claim is not properly before us and will not be adjudicated in this decision. Complainant many not raise a new claim for the first time on appeal. See, e.g., Shela O. v. Dep't of the Army, EEOC Appeal No. 01201138268 (Dec. 18, 2015) (citing Torres v. Unites States Postal Serv., EEOC Appeal No. 01934108 (June 10, 1994)).
Claims 2, 3, and 4: Hostile Work Environment
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create a hostile or abusive working environment." To establish a claim of harassment, Complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the protected class; (4) the harassment had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11.
With respect to element (5), an agency is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Where the harassment does not result in a tangible employment action, an agency can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) that the complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. See Burlington Industries, supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999) (Enforcement Guidance on Vicarious Employer Liability). No affirmative defense is available when a supervisor's harassment results in a tangible employment action. Burlington Industries at 762-63; Faragher at 808. In the case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. See Enforcement Guidance on Vicarious Employer Liability). What is appropriate remedial action will necessarily depend on the particular facts of the case, such as the severity and persistence of the harassment and the effectiveness of any initial remedial steps. See Taylor v. Dep't Of Air Force, EEOC Request No. 05920194 (July 8, 1992).
Further, EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within (45) days of the effective date of the action. The regulations provide that the agency or the Commission shall extend the time limits when the individual shows that she or he was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Id. � 1614.105(a)(2).
In this case, Complainant did not bring the matters raised in claims 2 - 4 to the attention of an EEO Counselor within 45 days of their alleged occurrence. Complainant, who has asserted that the incidents occurred in 2012, did not contact an EEO Counselor until July 3, 2013. She has presented no justification for extending the applicable time limit. To the extent that Complainant is arguing that claim 1 and claims 2 - 4 are part of a pattern of harassing conduct or otherwise constitute a continuing violation, her argument is unpersuasive. As the AJ noted, claim 1 is not connected with or similar to the other matters.
Moreover, even if Complainant had raised all four claims in a timely manner, she did not create a genuine issue of material fact regarding the existence of a discriminatorily hostile work environment. As noted above, the evidence does not establish that the Agency did not permit her to return to work for discriminatory reasons. In addition, Complainant acknowledged that S2 spoke with CW1. She also acknowledged that she did not report CW2's alleged comments or the periodical to management. Therefore, Complainant has not established a basis for imputing liability to the Agency.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that this case presented no genuine issues of material fact, such that summary judgment was appropriate, and that Complainant has not established that the Agency subjected her to harassment or discrimination on the basis of race, color, sex, disability, or reprisal for prior protected EEO activity. Accordingly, we AFFIRM the Agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (S0610)
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. 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
__6/26/18________________
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 S2 submitted a sworn affidavit on November 27, 2013. He did not respond to the EEO Investigator's April 9, 2014, request to provide an affidavit for a supplemental investigation. The supplemental Report of Investigation states that S2 retired from the Agency and that the EEO Investigator sent the request for an affidavit to S2's last address on record.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120162465
12
0120162465