0120181603
09-06-2018
Iesha G,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Iesha G,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120181603
Agency No. ARRIA18JAN00173
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated March 8, 2018, dismissing her 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 an Organizational Development and Training Specialist, GS-0301-09, at the Agency's Operation Training Division, Army Sustainment Command facility in Rock Island, Illinois.
On February 22, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), disability (Physical), age (57), and reprisal for prior protected EEO activity under Title VII, when:
1. on December 5, 2017, Complainant's supervisor grabbed her shoulder;
2. on May 23, 2017, Complainant's telework was cancelled;
3. on October 26, 2016, Complainant's request to telework was not approved until February 2017;
4. on July 30, 2016, after returning from deployment, Complainant did not get all of her training duties back;
5. on an unknown date while deployed in Kuwait, Complainant's supervisor called Complainant and gave her his room number; and
6. on or about September 2015, during a conversation about a lung capacity test, Complainant's supervisor looked at his crotch and commented, "I could have helped with that."
The pertinent record shows that Complainant applied for telework on October 26, 2016, but the telework was not approved until February 7, 2017. She stated that younger male employees had their telework requests approved within two weeks.
She stated that her supervisor cancelled her regular and recurring telework participation after Complainant asked to move her regular telework day to another day when she was sick. She asserts that her telework was cancelled due to her medical conditions and medications. She claims that she was retaliated against when she refused to stop by her supervisor's hotel room while deployed and that her duties were reduced after she returned from deployment.
The Agency issued a final decision dismissing the complaint. The Agency concluded the "incidents alleged are not sufficiently severe or pervasive to have altered the conditions of [Complainant's] employment to the point where she has stated a viable claim of discrimination. The Agency reasoned that Complainant was not aggrieved, because she did not make an allegation of present harm or loss with respect to a term, condition or privilege of employment for which there is a remedy.
This appeal followed. Complainant argues that the Agency improperly defined Complainant's allegation of discriminatory harassment as comprising only three incidents and failed to view her evidence in its totality. She contends the Agency erred when it fragmented her claims and found she had not stated a claim.
ANALYSIS AND FINDINGS
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, disability, genetic information, or retaliation. See 29 C.F.R. 1614.103(a) and 1614.106(a).
In this case, a fair reading of the complaint in conjunction with the related EEO counseling report shows that Complainant was alleging that she had been subjected to a hostile work environment and a series of related incidents of disparate treatment based on her sex (female), age, physical disability and reprisal. With regard to her retaliation claim, Complainant stated that she had raised EEO concerns on September 23, 2016, regarding being harassed and being treated differently by her supervisor. She claimed that she was then delayed in getting approval for telework, her duties were reduced, and her telework cancelled. In addition, she contends that she was subjected to physical touching, on December 5, 2017, when her supervisor grabbed her shoulder. She made EEO contact on January 9, 2018.
We construe Complainant as alleging claims of sex, age, disability discrimination and retaliation that were part of an ongoing pattern of harassment that started in September of 2015 and continued, with the last incident occurring on or around December 5, 2017. The record shows that her supervisor allegedly touched her, cancelled her telework schedule, changed her duties, made overt sexual statements to her. In short, she claims that she was denied a fair opportunity to be employed in a workplace free of unlawful discrimination. We find that the record supports our finding that she raised sufficient Title VII, ADEA, Rehabilitation Act claims, including claims of retaliation.
Further, we find that the Agency erroneously failed to even consider or recognize her claims that she was not discriminated against because of her age, disability or retaliation.
Complainant has alleged 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, we find that Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
CONCLUSION
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint. We REMAND the complaint to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E0618)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. 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 was issued, 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.
As provided in the statement entitled "Implementation of the Commission's Decision," the Agency must send to the Compliance Officer: 1) a copy of the Agency's letter of acknowledgment to Complainant, 2) a copy of the Agency's notice that transmits the investigative file and notice of rights, and 3) either a copy of Complainant's request for a hearing, a copy of Complainant's request for a FAD, or a statement from the agency that it did not receive a response from Complainant by the end of the election period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618)
Under 29 C.F.R. � 1614.405(c) and � 1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. � 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative.
If the Agency does not comply with the Commission's order, Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). 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, 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 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 (M0617)
The Commission may, in its discretion, reconsider the decision in this case if 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. 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 (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
September 6, 2018
__________________
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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