0120162702
10-27-2016
Leora R.,1 Complainant, v. Sylvia Mathews Burwell, Secretary, Department of Health and Human Services (Indian Health Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Leora R.,1
Complainant,
v.
Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services
(Indian Health Service),
Agency.
Appeal No. 0120162702
Agency No. HHS-IHS-0312-2016
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated July 27, 2016, dismissing a formal complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
On March 21, 2016, Complainant, a former Clinical Nurse at the Agency's Kayenta Health Center in Kayenta, Arizona, initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On June 21, 2016, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected her to discrimination on the bases of race, color, and in reprisal for prior EEO activity when:
1. on February 29, 2016, she inquired about a deduction on her pay check, to the Civilian 6Technician and was told she did not have any leave to use so Family Medical Leave Act and Leave Without Pay (LWOP) was posted for both days. Complainant contends this determination was not accurate, because there was leave available to use;
2. on January 31, 2016, she was charged 11 hours and 30 minutes of LWOP;
3. on January 7, 2016, she was charged 7 hours of LWOP;
4. on December 3, 2015, (1) she was told she is not being discriminated against, and to be quiet about the EEO talk with the Supervisory Clinical Nurse and (2) the Supervisory Clinical Nurse reported to Complainant a false statement that a named female employee (E1) made about her, regarding a conversations she had with the health technician, which E1 altered the context and the actual statement. The Supervisory Clinical Nurse informed Complainant that she and E1 were contemplating filing an EEO complaint regarding that statement;
5. on December 1, 2015, she asked "why is it when I worked with [Registered Nurse's] group it seems that I was the only one taking points?;"
6. on November 25, 2015, she informed her supervisor that another registered nurse stated "since day one, [female employee] has carried on with negative gossip about [Complainant]. I believe if she is gossiping about [Complainant], she is likely gossiping about me. It seems as if she gets joy from bullying and harassing new employees in front of others. [Complainant] and I work very well together and as a team we support each other, but we don't get the same feeling working with [female employee];"
7. on November 7, 2015, she was verbally degraded by a named employee and other staff members;
8. on October 7, 2015, she was denied to work overtime;
9. on August 5, 2015, she was charged Absent Without Leave (AWOL); and
10. on June 21, 2015, she was reprimanded by the Registered Nurse for socializing with three other African-American co-workers in the laboratory.
In its July27, 2016 final decision, the Agency dismissed claim 1 for failure to pursuant to 29 C.F.R. � 1614.107(a)(1). The Agency dismissed claims 2 - 10 on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on March 21, 2016, which it found to be beyond the 45-day limitation period regarding these nine claims.
The instant appeal followed.
ANALYSIS AND FINDINGS
Claim 1 (failure to state a claim)
The Agency improperly dismissed claim 1 for failure to state a claim. The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any 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, .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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Contrary to the manner in which the formal complaint was identified in the final decision, the instant formal complaint and EEO Counselor's Report reflect a more detailed series of alleged incidents. Specifically, Complainant stated "I was harassed, discriminated against, and treated differently because of my race and skin color. I also was retaliated against because I wanted to file an EEO complaint against [three named employees] due to their discriminatory and harassing behavior towards myself and other African Americans there at Kayenta Service Unit...these behaviors created a very hostile work environment, the reason why medically I had to seek out employment [elsewhere]."
As a remedy, Complainant requested to be three named employees be reprimanded, her LWOP and AWOL changed to annual leave, and compensatory damages. By alleging a pattern of harassment, Complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993).
Claims 2 - 10 (EEO Counselor contact)
The Agency also improperly dismissed claims 2 - 10 on the grounds of untimely EEO Counselor contact. Complainant initiated EEO Counselor contact on March 21, 2016. The Commission has held that "[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence." EEOC Compliance Manual, Section 2, Threshold Issues at 2 - 75 (revised July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)).
The various incidents comprising Complainant's hostile work environment claim occurred within the 45-day time period preceding Complainant's March 21, 2016 EEO Counselor contact, as discussed above. Because a fair reading of the record reflects that the matter identified in claims 2 - 10 is part of that harassment claim, we find that the Agency improperly dismissed these claims on the grounds of untimely EEO Counselor contact.
We REVERSE the Agency's final decision dismissing Complainant's formal complaint, defined herein as a harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ordered to process the remanded claim (harassment/hostile work environment) in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claim within thirty (30) calendar days of the date of this decision. 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 of this decision, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
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 Complainants 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
October 27, 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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