Nery C.,1 Complainant,v.Ryan McCarthy, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jul 25, 2019

2019002548 (E.E.O.C. Jul. 25, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Nery C.,1
Complainant,

v.

Ryan McCarthy,
Acting Secretary,
Department of the Army,
Agency.

Appeal No. 2019002548

Agency No. ARCARSON18DEC05055

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated January 17, 2019, 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 a Health Systems
Specialist, GS-0671-11, at the Agency’s Evans Army Community Hospital facility in Fort
Carson, Colorado.

On January 10, 2019, Complainant filed a formal complaint alleging that the Agency subjected
her to a discriminatory hostile work environment on the bases of race (African-American), color
(Black) and sex (female). In a series of attachments to her formal complaint, Complainant listed
approximately 50 incidents of alleged discriminatory harassment, primarily involving her
supervisor, MP, that occurred between January and October 30, 2018.

The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO
Counselor contact.

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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The Agency asserted Complainant did not initiate contact with an EEO counselor on the claim
until December 3, 2018, more than 45 days from most of the alleged harassment. With respect to
timely incidents, occurring in late October 2018, the Agency concluded they were not
sufficiently connected to the untimely claims to be part of a unified harassment claim and did not
state a claim by themselves.

The instant appeal followed.

ANALYSIS AND FINDINGS

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.

The record discloses that the alleged discriminatory events occurred between January and late
October 2018, but the Agency states that Complainant did not make contact with an EEO
counselor until December 3, 2018. However, on appeal, Complainant presented evidence in the
form of an Information Inquiry Summary signed by an EEO official and Complainant, dated
November 15, 2018, showing counseling contact on that date. Therefore, we conclude that
November 15 was the date Complainant made initial EEO counseling contact.

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 National Railroad Passenger Corp. v. Morgan, 536 U.S.
101, 122 S. Ct. 2061 (2002). Here, we find that several of Complainant’s allegations provided in
support of her claim of ongoing discriminatory harassment by her supervisor occurred within 45
days of her initial EEO counselor contact. As such, we find the Agency improperly dismissed
Complainant’s hostile work environment claim, starting in January 2018, as untimely raised.
While the Agency asserts that the timely incidents were not sufficiently related to the earlier
incidents, we find that a fair reading of the formal complaint, related EEO counseling report and
statement on appeal, indicates that all the incidents are tied together with a common theme – that
Complainant’s supervisor, from the day she started as Chief of the division in January 2018,
acted in a manner designed to undermine Complainant’s authority with her colleagues and
subordinates as a supervisor and set her up for failure, including repeated incidents of
countermanding Complainant’s instructions to her subordinates.

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. Here, we find that, considering all Complainant’s allegations together, she has
stated a viable hostile work environment claim that requires investigation and further processing.

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Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED
and the matter is REMANDED as set forth below.

ORDER (E0618)
The Agency is ordered to process the remanded claim (hostile work environment starting in
January 2018 forward) 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.
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 the 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, 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.
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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.
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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

July 25, 2019
Date