0120180645
03-28-2018
King D.,1 Complainant, v. Wilbur L. Ross, Jr., Secretary, Department of Commerce (Patent and Trademark Office), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
King D.,1
Complainant,
v.
Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(Patent and Trademark Office),
Agency.
Appeal No. 0120180645
Agency No. 17-56-92
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated November 13, 2017, 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 Patent Examiner, GS-1222-12 at the Agency's at the Art Unit 3625 in Technology Center at the Agency's United States Patent and Trademark Office in Alexandria, Virginia.
Complainant asserted that he had reported a sex scandal within the workplace regarding a Supervisory Patent Examiner (SPE) and a Junior Examiner (JE) in March 2016. Since reporting the incident, Complainant asserted that he has been subjected to harassment in the form of misconduct allegations against him, discrimination, sexual harassment, obstruction to justice, and retaliation.
On June 20, 2017, Complainant contacted an EEO counselor alleging discrimination. When the matter was not resolved, on September 27, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to harassment on the bases of national origin (Indian), sex (male), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 (namely Agency No. 16-56-44). In support of his claim, Complainant included a list of 63 events that he said occurred from October 2015 through September 2017. Some of the events included:
1) From October 2015 to February 2016, the SPE made eye contact with Complainant for a couple of months.
2) Events related to a sexual relationship and the Agency's investigation into the relationship between the SPE and the JE.
3) In March 2016, he was issued a Letter of Reprimand and a No Contact Directive involving the SPE.
4) On March 3, 2016, Human Resources came to his office and took his ID and asked him to shut down his computer.
5) On March 23, 2016, he was issued a letter requiring him to report to his office or he would be considered absent without leave.
6) Beginning in March and April 2016 to the present, he was threatened by management.
7) In April 2016, Quality tracker review reports which showed no errors were now reporting repeated errors; his work was scrutinized more closely.
8) In July 2016, his work was rated as "Error."
9) From April 2016 to the present, Complainant believed that his witnesses were tampered with; his colleagues were spying on him; his friends at work betrayed him and would no longer associate with him.
10) In August 2016, he was told by management to withdraw his EEO complaint.
11) In August 2016, Complainant's coworkers told him he should leave to work for a different management or he will be kicked out of the office.
12) August 2016, his Auto Count access was tampered with.
13) People were conspiring to make a case for management.
14) Complainant was issued a Performance Notice.
15) In October 2016, Management tampered with his time sheets lowering his work production score.
16) Coworkers in a WhatsApp group conspired against Complainant with the help of management.
17) In January 2017, Complainant's supervisor didn't give him his quarter quality review.
18) In February 2017, Complainant was told that he needed to withdraw his rejection of an applicant following the interview.
19) In February 2017, he was told that he could be fired at any time.
20) At the end of February 2017, a coworker asked him "how are you doing?" in a sarcastic tone. Complainant indicated that this was his former friends harassing and insulting him.
21) March 18, 2017, Complainant tried to turn in work with time running out on the deadline but was unable to do so because his supervisor was away.
22) Because of the mistake regarding the submission, he was told that it would be known in the case record of his error.
23) On April 19, 2017, Complainant was told he needed improvements in his mid-year review.
24) On May 24, 2017, his supervisor provided him with corrections in hand written paper which would normally be given in an email.
25) On June 19, 2017, Complainant was taking pictures around the workplace to show his mom. He asserted that coworkers did not talk to him and seemed threatening to him. The next day, Complainant was contacted by the Agency's security office about the pictures he was taking.
26) On June 23, 2017, Complainant was given bad reviews by his supervisor.
27) In July 2017, as a result of the harassment and isolation by management and coworkers, Complainant has been diagnosed with gastroesophageal reflux disease.
28) Complainant informed his supervisor of the diagnosis asserting that Complainant believed that the condition was based on the immense stress and harassment he experienced in the workplace.
29) In April 2014, Complainant stated that this was a separate incident. He believed that a trainer (Trainer) was making eye contact with him and he decided to ask her out on a date. She declined but he asserted that she continued to make eye contact with him. The Trainer informed management that Complainant asked her out. The Manager told him that this is bad and he should not repeat this again. Complainant agreed that he would not do this again.
In addition to the events above, Complainant also alleged that the EEO Counselor, the EEO Director, and other EEO officials engaged in misconduct and obstruction of justice. Complainant asserted that the EEO Counselor failed to record all his information following an 87-minute conversation. Complainant believed it was done to make him legally weak and to frame his claim in a way that would work against him. Complainant also claimed that the Agency's EEO Counselor provided him with the wrong information in his initial counseling session regarding the instant complaint. Complainant believed the EEO Counselor omitted many incidents from his chronology of incidents.
The Agency dismissed the complaint as a whole. The Agency dismissed all claims before March 30, 2016, the date when Complainant voluntarily withdrew his prior EEO complaint in Agency No. 16-56-44. The Agency held that these events were previously alleged in his prior complaint and, therefore, the events should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for raising the same claim in a prior complaint.
The Agency then dismissed claims arising prior to May 6, 2017, pursuant to 29 C.F.R. � 1614.107(a)(2) for alleging events outside of the 45-day time limit. The Agency indicated that Complainant was aware of the 45-day time limit because of his completion of the No Fear Act training that included information about the EEO time frame. In addition, the Agency held that Complainant alleged events which involved his coworkers and management officials. The Agency found that these events were not connected or related with one another. The Agency determined that the events related to coworkers were too distant in time to the timely incidents raised to be part of a theory of continuing violation. As such, the Agency found that the events which occurred before May 6, 2017, were dismissed as untimely alleged.
The final decision then determined that Complainant's claim of ongoing harassment should be dismissed, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Agency found that Complainant failed to provide evidence to show that the alleged incidents were because of his protected bases, namely his national origin and/or sex. The Agency also held that Complainant did not show that the allegations were unwelcomed or that he suffered any adverse action or actions which created a hostile work environment. Therefore, the Agency concluded that Complainant's claim of harassment should be dismissed for failure to state a claim.
Finally, the Agency dismissed Complainant's allegations regarding the representatives of the EEO Office. The Agency noted that such claims constituted dissatisfaction with the processing of his complaint and, as such, should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(8). The Agency held that it found no merit to Complainant's allegations of dissatisfaction and the complaint should be dismissed.
This appeal followed. Complainant restated the 63 events he had raised with the Agency. He argued that the Agency's bases for dismissal were not appropriate. As to his claim of harassment, Complainant argued that all these events occurred after he reported a sexual relationship between the SPE and the JE. He claimed that all the events he claimed occurred were in support of his claim that Agency officials, including management and coworkers, conspired to create a hostile work environment. As such, Complainant asserted that the events should have been reviewed as a single claim of harassment. Further, he indicated that several of the events he listed in his formal complaint were not addressed or listed in the Agency's final decision. Complainant believed that if all the events were reviewed, he would have established an actionable claim of harassment. In conclusion, Complainant requested that the Commission reject the Agency's dismissal of his complaint.
ANALYSIS AND FINDINGS
Same Claim
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the Agency or Commission. The Agency dismissed all events alleged to have occurred before March 30, 2016, indicating that Complainant had previously raised these events in a prior complaint which Complainant withdrew. Complainant conceded that he did withdraw his prior EEO complaint.
A review of the record indicates that the Agency failed to provide a copy of the prior EEO complaint. As such, we cannot determine whether Complainant alleged some of the same events in his prior EEO complaint. Thus, the Agency has failed to substantiate the bases for its final decision. See Marshall v. Dep't of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991). As such, we cannot find that the dismissal of the events which occurred before March 30, 2016, was appropriate.
Untimeliness
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the Agency extends the time limits in accordance with �1614.604(c). EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with 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.
In his formal complaint and on appeal, Complainant alleged a separate incident which he asserted was unrelated to his claim of harassment. He asserted that the incident occurred in April 2014. Clearly, this event occurred well beyond the 45-day time limit. Complainant has not provided any reason or explanation for the delay. We find that the Agency's dismissal of this event was appropriate.
As to the remaining events, Complainant alleged that these events together created a hostile work environment. We note that the Supreme Court of the United States 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, 117 (2002). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. The Court defined such "discrete discriminatory acts" to include acts such as termination, failure to promote, denial of transfer, or refusal to hire, acts that constitute separate actionable unlawful employment practices. Id. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id.
In the complaint at hand, Complainant has clearly asserted that he has been subjected to harassment based on his national origin, sex, and prior EEO activity. In support of his claim, he asserted that management had subjected him to greater scrutiny and has conspired with his coworkers to make him isolated in the workplace. Upon review, we find that Complainant has asserted that the events alleged were connected and occurred in concert in order to create a hostile work environment. Further, Complainant claimed that management and coworkers were working in conjunction to make the workplace so hostile that he would leave or get fired. Therefore, we conclude that Complainant has alleged a series of events as part of a claim of harassment, of which at least one act falls within the filing period. As such, we find that the Agency's dismissal of the events before May 6, 2017, pursuant to 29 C.F.R. � 1614.107(a)(2) was not appropriate.
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, disabling condition, genetic information, or reprisal. 29 C.F.R. �� 1614.103, .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).
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 the complainant's employment. Thus, not all claims of harassment are actionable. As noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment'." Here, viewing the allegations together and assuming they occurred as alleged, we find that Complainant's allegations are sufficient to state a viable claim of a hostile work environment.
After a review of the its final decision, the Commission finds that the Agency has, in many instances, addressed the merits of Complainant's complaint without a proper investigation as required by the regulations. The Agency's articulated reasons for the actions in dispute, go to the merits of Complainant's complaint, and are irrelevant to the procedural issue of whether he has stated a justiciable claim under Title VII. See Osborne v. Dep't of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. U.S. Postal Serv., EEOC Request No. 05930220 (Aug. 12, 1993); Ferrazzoli v. U.S. Postal Serv., EEOC Request No. 05910642 (Aug. 15, 1991). As such, we find that the Agency's dismissal of these events was not appropriate.
Dissatisfaction with the EEO complaint process
Finally, we note that Complainant alleged actions taken by the EEO Office. Allegations of dissatisfaction with an agency's processing of a previously filed or pending complaint cannot be the subject of an EEO complaint. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 5, IV.A.12 and IV.D (Aug. 3, 2015); Morris v. Dep't of Def., EEOC Request No. 0520130316 (Aug. 27, 2013). Our guidance further provides that complaints about the processing of existing complaints should be referred to the Agency official responsible for complaint processing, and/or processed as part of the original complaint. If no action was taken, the file must contain an explanation of the Agency's reason(s) for not taking any action. EEO MD-110, supra.
As noted above, Complainant alleged events which constituted dissatisfaction with the processing of his complaint. Specifically, he asserted that the EEO Counselor failed to include all of his claims or supporting evidence and that EEO officials mislead him in order to negatively impact his case. Such allegations constitute "spin-off" allegations and do not form the basis of a separate cause of action. Here, while the Agency asserted in its final decision that it found no merit to Complainant's claims, it must, pursuant to the guidance in MD-110, memorialize its rationale for such conclusions in the complaint file for consideration when the complaint is further adjudicated.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the dismissal of Complainant's single claim regarding April 2014, as well as his "spin-off" allegations. However, as to Complainant's claim of ongoing harassment regarding events which occurred from October 2015 to July 2017, we REVERSE the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below.
ORDER (E1016)
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 the 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.
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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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 (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
March 28, 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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