Nicole T.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Oct 24, 2018

0120182784 (E.E.O.C. Oct. 24, 2018)

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

Nicole T.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture,
Agency.

Appeal No. 0120182784

Agency No. USDACCDCF201800701

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated August 3, 2018, 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Team Lead, GS-14 at the Agency’s Office
of the Assistant Secretary for Civil Rights (“OASCR”) Office of Adjudication in Washington,
District of Columbia.

On June 4, 2018, Complainant initiated EEO Counselor contact. Informal efforts to resolve her
concerns were unsuccessful.

On July 6, 2018, Complainant filed the instant formal complaint. Complainant claimed that she
was subjected to harassment and a hostile work environment based on age, race, and color when:

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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1. Since February 2018 through March 20, 2018, the Chief Employment Adjudication
Division, sent Complainant numerous hostile emails and has yelled at Complainant and
other staff members in meetings;

2. on or around May 30, 2018, Complainant became aware that the Director of Conflict
Complaints Division provided false, offensive, and slanderous comments about
Complainant in an internal Management Inquiry report; and

3. on or around June 4, 2018, the Director of Office of Adjudication and the Acting Deputy
Assistant Secretary for Civil Rights refused to remove the Director’s Conflict Complaints
Division statement from the internal Management Inquiry report and refused to include
Complainant’s rebuttal statement in the report.

In its August 3, 2018 final decision, the Agency dismissed claim 1 for 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 June 4, 2018, which it found to be
beyond the 45-day limitation period.

The Agency also dismissed claims 1-3 pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to
state a claim, finding that Complainant was not aggrieved, and the alleged incidents were not
sufficiently severe or pervasive to set forth an actionable claim of harassment.

The instant appeal followed. On appeal, Complainant argues that the alleged incidents are
examples of “continuing harassment” and not discrete acts. Complainant further argues that
her EEO Counselor contact was timely and the alleged incidents state an actionable
harassment claim. Complainant also attaches additional evidence, including three affidavits
from other coworkers, in support of her appeal.

In response, the Agency argues that the dismissal grounds should be affirmed and that the
new evidence Complainant submits on appeal should be excluded.

ANALYSIS AND FINDINGS

Failure to State a Claim (claims 1-3)

A formal complaint should not be dismissed for failure to state a claim unless it appears beyond
doubt that the complainant cannot prove a set of facts in support of the claim which would entitle
the complainant to relief. The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to the complainant,
determine whether they are sufficient to state a claim. Cobb v. Dep’t of the Treasury, EEOC
Request No. 05970077 (Mar. 13, 1997).

In the instant matter, we find that when viewing the alleged incidents collectively, Complainant
has set forth an actionable claim of harassment.
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Complainant alleges that she has been subjected to ongoing harassment. The EEO Counselor’s
report indicates that Complainant allegedly was not provided adequate resources to complete her
work responsibilities. Complainant explains that in February 2018, she was required to write
Final Agency Decisions (“FADs”). Complainant further alleges that the feedback she received
on her draft FADs was not sufficient, the standard operation procedures for writing FAD’s were
inconsistent, and she followed procedures she used in other divisions to complete her work.
Complainant also alleges that her supervisor (“S1”) was aware of these issues but “harassed her
by sending her derogatory emails regarding her attempts to obtain a supplement investigation
where the SOPs were silent” since February 2018.

Complainant further alleges that S1 yelled at her during a March 20, 2018 staff meeting and
Complainant requested a management inquiry regarding S1’s behavior during this meeting.
Complainant alleges the management inquiry report includes “slanderous” statements about
Complainant from another management official who was not present during the March 20, 2018
staff meeting and who was not in Complainant’s chain-of-command. Complainant explains that
management, on June 4, 2018, refused her request to remove these statements from the
management inquiry report or alternatively include Complainant’s rebuttal statement in the
report. Considering all the incidents alleged by Complainant and assuming they occurred as
alleged, Complainant has established that she was subjected to continuous harassment.
Therefore, we find that the instant complaint states a claim. 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 (Apr. 21, 1994).

Untimely EEO Counselor Contact (claim 1)

The Agency also improperly dismissed claim 1 for untimely EEO Counselor contact. The record
reflects that Complainant initiated EEO Counselor contact on June 4, 2018. 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 filling period. This includes incidents
that occurred outside of 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 record reflects that various incidents comprising Complainant’s hostile work environment
claim occurred within the 45-day time period preceding Complainant’s June 4, 2018 EEO
Counselor contact, as discussed above. Because a fair reading of the record reflects that the
matters identified in claim 1 are part of that harassment claim, we find that the Agency
improperly dismissed this claim on the grounds of untimely EEO Counselor contact.

Accordingly, we REVERSE the Agency’s dismissal of the formal complaint for untimely EEO
Counselor contact and for failure to state a claim, defined herein as a harassment claim, and we
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REMAND this matter to the Agency for further processing in accordance with the ORDER
below.

ORDER (E0618)
The Agency is ordered to process the remanded claims (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 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

October 24, 2018
Date