0120162162
09-07-2016
Stacy M.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Stacy M.,1
Complainant,
v.
Eric K. Fanning,
Secretary,
Department of the Army,
Agency.
Appeal Nos. 0120162162
0120162184
Agency Nos. ARCEME15AUG03169
ARCEME15JUL02656
DECISION
Pursuant to 29 C.F.R. 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's May 24, 2016 final decisions concerning the two captioned EEO formal complaints that claimed 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the sake of administrative efficiency, the Commission exercises its discretion and consolidates the two appeals. See 29 C.F.R. � 1614.606.
BACKGROUND
During the period at issue, Complainant worked as a Constructive Control Representative at the Agency's U.S. Army Corps of Engineers, Middle East District, Bahrain Area Office in Winchester, Virginia.
Complainant filed two formal complaints on September 7, 2015 and October 1, 2015, respectively.
Agency No. ARCEME15AUG03169 (hereinafter referred to as Complaint 1)
On August 24, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On October 1, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race, color, age, and in reprisal for prior EEO activity when:
1.a. on August 8, 15, and 22, 2015, he was denied overtime by management;
1.b. on August 6, 2015, he was harassed, treated differently, and his request for safety shoes was denied by management;
1.c. in August 2015, he attempted to be compensated over the course of the past year (beginning approximately August 2014) for Permanent Change of Station (PCS) related expenses and benefits, and was provided false information about POV shipments; and
2.a. on March 10, 2016, after approximately one month, his home leave request had not been approved or disapproved.2
On April 11, 2016, Complainant requested that the instant complaint be amended to include the following claims:
he was subjected to harassment and a hostile work environment on the bases of race, color, age, and in reprisal for prior EEO activity when3:
1. on December 5, 2015, he was harassed and personally berated by a foreign service national co-worker regarding the light fixture installation;
2. on December 22, 2015, he was harassed regarding the P937 Lighting Fixture Installation;
3. on December 26, 2015, he received a response to his inquiry form the PWD Bahrain/NAVFAC EURAFSWA MILCON Manager regarding the P937 Lighting Fixture Installation; and
4. on December 5, 2015, he was not asked to work overtime but two other team members were asked by the supervisor to work on projects in which he was assigned to.
In its April 11, 2016 letter, the Agency determined that claims 1 - 4 were not "like or related" to any claims raised during counseling, and must be dismissed for this reason.
In its May 24, 2016 final decision, the Agency dismissed claims 1.a. and 1.b. pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim, finding that Complainant was not aggrieved.
Further, the Agency dismissed claim 1.c. 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 August 24, 2015, which it found to be beyond the 45-day limitation period.
Agency No. ARCEME15JUL02656 (hereinafter referred to as Complaint 2)
On July 27, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On September 7, 2015, Complainant filed a formal complaint alleging that he was subjected to harassment and a hostile work environment on the bases of race, color, age, and in reprisal for prior EEO activity when:
1.a. during the periods of March 31, 2014, July 31, 2014, early May 2015, and July 28, 2015, he was subjected to unfair treatment and retaliation when he requested and was denied a diplomatic passport for travel to Saudi Arabia by the Bahrain Resident Office (BRO) Acting Resident Engineer and the BRO Area Engineer;
1.b. on July 27, 2015, he was denied Training and an Individual Development Plan by the BRO Area Engineer;
1.c. on June 10, 2015, he was falsely informed and denied Priority Placement Program (PPP) status by the Rock Island Civilian Personnel Advisory Center/Human Resources Specialist;
1.d. on June 5, 2015, he was subjected to retaliation and unfair treatment expressed by the Gulf Area Engineer in emails dated May 6 and 23, 2015, which resulted in denial of a Tour Extension and Assignment to remain in Bahrain;
1.e. on June 3, 2015, he was denied leave (for the period June 21, 2015-July 9, 2015) by the Acting Resident Engineer, BRO;
2.a. as of March 10, 2016, his home leave and travel request submitted to his supervisory chain on March 6, 2016, had not been approved or disapproved.4
In its May 24, 2016 final decision, the Agency dismissed all the claims raised in the formal complaint on various procedural grounds. The Agency expressly dismissed the entire complaint, pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim, finding that Complainant was not aggrieved.
The Agency also dismissed the complaint 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 August 24, 2015, which it found to be beyond the 45-day limitation period.
Further, the Agency dismissed the complaint on the alternative grounds of mootness, pursuant to 29 C.F.R. � 1614.107(a)(5). Specifically, the Agency determined that each claim had been rendered moot by subsequent Agency management actions.
With respect to claim 2.a., the Agency did not address it because it was considered as background information in support of Complainant's alleged continuing violation of denied leave claim.
The instant appeal followed.
ANALYSIS AND FINDINGS
Complaints 1 and 2 (failure to state a claim)
The Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment by dismissing claims 1.a. and 1.b. of Complaint 1 and Complaint 2 for failure to state a claim. A fair reading of claims 1.a. and 1.b. of Complaint 1 and Complaint 2, Complainant claimed that he was subjected to a series of related incidents of harassment from March 2014 through present.
As a remedy, Complainant requested compensation for the denial of overtime and PCS related expenses to Bahrain, that Agency management "revise orders to remove inaccurate 'constructive cost' and provide for 'POV Shipment' of personal vehicle," and that responsible management officials attend training relating to safety shoes policy.
We also note in Complaint 2, Complainant requested two years extension in Bahrain, training courses, receive an approved Individual Development Plan and performance objective, receive
the difference in airline ticket fare from $1,500.00 to $2,200 "due to late approval of leave," receive Diplomatic Passport, Saudi Arabia and Bahrain visas, and to be moved out of the Kuwait Area Office under the supervision of the Program Manager and Area Engineer These matters, taken together, state an actionable claim of harassment. 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).
Claim 1.c. of Complaint 1 and Complaint 2 (untimely EEO Counselor contact)
The Agency also improperly dismissed claim 1.c. of Complaint 1 and Complaint 2 on the grounds of untimely EEO Counselor contact. The record reflects that Complainant initiated EEO Counselor contact on July 27, 2015 and August 24, 2015, respectively. 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 record reflects that various incidents comprising Complainant's hostile work environment claim occurred within the 45-day time period preceding Complainant's July 27, 2015 and August 24, 2015 EEO Counselor contact, as discussed above. Because a fair reading of the record reflects that the matter identified in claim 1.c. of Complaint 1 and Complaint 2 is part of that harassment claim, we find that the Agency improperly dismissed the claims on the grounds of untimely EEO Counselor contact.
Complaint 2 (mootness)
EEOC Regulation 29 C.F.R. � 1614.107(a)(5) provides that the Agency shall dismiss a complaint that is moot. To determine whether the issues raised in Complainant's complaint remain in dispute, it must be ascertained (1) if it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) if the interim relief or events have completely irrevocably eradicated the effects of the alleged violations. See County of Los Angeles v. Davis, 440 U.S. 625 (1979). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented.
Complaint 2 has not been rendered moot. A fair reading of the formal complaint reflects that Complainant has made a request for compensatory damages. The Agency must address the issue of compensatory damages when a complainant presented objective evidence that he or she incurred compensatory damages and that such damages were related to the alleged discrimination. See Jackson v. USPS, EEOC Appeal No. 01923399 (November 12, 1992), request to reopen denied, EEOC Request No. 05930386 (February 11, 1993). Consequently, where, as here, a Complainant makes a request for compensatory damages during complaint processing, the Agency is obligated to request objective evidence of such damages. Should Complainant prevail in his claim, the possibility of compensatory damages award exists, and Complainant's claim is not moot.
Claim 2.a. of Complaints 1 and 2 and Denial of amended claims 1 - 4 of Complaint 1
We find that it was improper for the Agency to treat claim 2.a. as background information. Complainant alleged that he is subjected to ongoing harassment. For this reason, we find that the Agency, on remand, should issue a final decision in which it addresses claim 2.a. on the merits.
Additionally, we find that the Agency improperly denied Complainant's request to have Complaint 1 amended by including amended claims 1 - 4 because they were not "like or related" to any claims raised during counseling.
Accordingly, we REVERSE the Agency's dismissal of claims 1.a. - 1.c. of Complaint 1 and Complaint 2 for untimely EEO Counselor contact and failure to state a claim, Complaint 2 on the grounds of mootness, and amended claims 1 - 4 of Complaint 1 because they were not "like or related" to other accepted claims, defined as a harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
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 becomes final. 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 becomes final, 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 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 7, 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.
2 The record reflects that the Agency granted Complainant's request to amend Complaint 1 by including claim 2.a. as background information in support of his alleged continuing violation of denied leave claim.
3 For ease of reference, the Commission has numbered the requested amended claims as claims 1 - 4.
4 The record reflects that claim 2.a. was later amended to the instant Complaint 2.
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