U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stacie D.,1 Complainant, v. Michael R. Pompeo, Director, Central Intelligence Agency, Agency. Appeal No. 0120162226 Agency No. 16-14 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated May 26, 2016, 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 Complainant contacted the EEO Counselor on July 22, 2015, alleging that she was subjected to harassment. The Agency described the contact as Complainant obtaining only "advice" and she did not pursue an EEO complaint. Because Complainant made the Agency aware of an alleged violation of its Zero Tolerance Policy, the Agency initiated an investigation into her claim of harassment. The internal investigation had been concluded and on November 16, 2015, Complainant contacted the EEO Counselor to engage in the pre-complaint EEO counseling. When the matter could not be resolved informally, on March 2, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. Complainant was sexually harassed when from Fall 2014 through summer 2015 the following occurred: a) From Fall 2014 through Summer 2015, her colleague (Co-worker) made inappropriate social and sexual advances towards Complainant, both in and outside the workplace, even after she notified him to stop and that the advances were unwelcome; b) From Fall 2014 through Summer 2015, the Co-worker advised Complainant that his marriage was failing and that he would have horrific fights with his wife, suggesting that Complainant needed to meet with him because his wife kicked him out of their house; c) From Fall 2014 through Summer 2015, the Co-worker advised Complainant that he was willing to leave his wife for Complainant; d) From Fall 2014 through Summer 2015, the Co-worker asked Complaint to not disclose his marital issues to anybody; e) From Fall 2014 through Summer 2015, the Co-worker asked Complainant to join him for "drinks" after work up to two times each week; f) From Fall 2014 through Summer 2015, the Co-worker telephoned Complainant approximately 300 times and texted her nearly every day, sometimes multiple times each day, outside of business hours in an attempt to socialize with her; he would act rude, unprofessional, and angry towards her if she did not respond to his calls and text messages; g) From Fall 2014 through Summer 2015, the Co-worker threatened Complainant that if she did not engage him in social settings, he would destroy her career and negatively influence her employment application; h) From Fall 2014 through Summer 2015, the Co-worker would enter Complainant's office and whisper to her about their friendship, apologize to her, and explain that he only gets angry because he cares about her so much; i) From Fall 2014 through Summer 2015, the Co-worker would stomp past and linger outside of Complainant's office if she had another male inside; j) From Fall 2014 through Summer 2015, the Co-worker verbally obsessed about Complainant's boyfriend, gave two of Complainant's boyfriends' derogatory names (fat, white trash, 5% Grant), made fun of her for dating them, and told her that they only wanted to "fuck" her in front of her coworkers; k) From Fall 2014 through Summer 2015, the Co-worker gave Complainant unsolicited advice about her relationship and found new ways to create an argument between her and her boyfriend even after Complainant asked him to stop; l) From Fall 2014 through Summer 2015, the Co-worker told Complainant that he is the only one that cares about her; m) From Fall 2014 through Summer 2015, the Co-worker told Complainant up to seven times that she should tan "topless" because he can clearly see her tan lines on her shoulders; n) From Fall 2014 through Summer 2015, the Co-worker asked Complainant what her favorite sexual positions and activities were; o) From Fall 2014 through Summer 2015, the Co-worker told Complainant about the sexual adventures that he has enjoyed to include pouring hot wax on his ex-girlfriend when they were both on a tarp, binding girls with his necktie, and pulling their hair while engaged in sexual activities; p) From Fall 2014 through Summer 2015, the Co-worker told Complainant that he came from a Doctor's appointment and he was certain that the doctor wanted to "fuck" him; q) From Fall 2014 through Summer 2015, the Co-worker told Complainant that her supervisor (Supervisor) was not happy with her work, but if she went out socially with him he would be willing to give her additional details, including how to be successful at work; r) From Fall 2014 through Summer 2015, the Co-worker sent Complainant two inappropriate images via an inter-office messaging application; s) From Fall 2014 through Summer 2015, the Co-worker told Complainant that he would like to take and/or see nude photographs of her before and after she tried a new "live fit" workout program; t) From Fall 2014 through Summer 2015, the Co-worker implied to Complainant that he was aware that she traveled to a work training facility to visit her boyfriend, when she did not tell anybody that she was traveling to that training location; u) In winter 2014, Complainant felt pressured to engage the Co-worker in sexual intercourse at her residence after they watched a football game on TV and consumed alcohol or else she would suffer negative career consequences; v) In winter 2014, the Co-worker told Complainant up to ten times that her ass and legs looked "really good" in riding pants and tight boots and that she should wear them more often; w) On November 21, 2014, the Co-worker sent Complainant a text message with a link to nude photographs of Kim Kardashian; x) On June 20, 2015, the Co-worker called Complainant and told her that, based on his connections with the Office of Security, he got her applicant "BI" and polygraph scheduled earlier than normal because he takes care of people he likes and that he would be beneficial for her to "have him around" and "hang outside of work," or else he could negatively impact her hiring process; y) On July 16, 2015, the Co-worker entered Complainant's office uninvited and attempted to "airplane" feed her pasta, which he spilled on her and then offered to clean up from the front of her shirt in an attempt to feel her breasts; z) On July 16, 2015, the Co-worker drove his silver Audi down the Agency parking lot, Row M, towards Complainant in an attempt to intimidate her; aa) On July 16, 2015, the Co-worker offered to bring to Complainant's house a bottle of Hendricks Gin for her to drink; bb) On July 17, 2015, the Co-worker slammed an office door in Complainant's face because she refused to answer his phone calls and his text messages from the night before; cc) On July 31, 2015, Complainant was "disapproved" by the Office of Security as an applicant because she would not engage with the Co-worker socially; dd) On August 24, 2015, Complainant was escorted out of the "HQS building" because she would not engage the Co-worker on a social level; ee) On September 24, 2015, Complainant was placed on administrative leave from her home organization due to her applicant security disapproval. 2. Complainant alleges she was subjected to a hostile work environment on the basis of sex (female) when from fall 2014 through summer 2015 the following occurred: 1. From Fall 2014 through Summer 2015, the Co-worker intimidated and bullied Complainant to the point that she was unable to report his harassing behavior out of fear for her personal safety; 2. From Fall 2014 through Summer 2015, the Co-worker would yell at Complainant and stomp in front of her office in an attempt to intimidate her; 3. From Fall 2014 through Summer 2015, the Co-worker made the Complainant feel obligated to answer his phone calls and texts or else he would make her workday difficult by sabotaging her professional reputation with her coworkers; 4. From Fall 2014 through Summer 2015, the Co-worker walked into Complainant's office uninvited and hung up her enteral telephone when she was engaged in a conversation on said phone; 5. From Fall 2014 through Summer 2015, the Co-worker, while sitting in Complainant's office, would tell her to not answer the telephone if it rings or else he would be angry with her the rest of the day; 6. From Fall 2014 through Summer 2015, the Co-worker told Complainant how he can be a bad person to anger; 7. From Fall 2014 through Summer 2015, the Co-worker intimated Complainant by telling her that he knows when someone is lying to him because of his training in interrogation; 8. From Fall 2014 through Summer 2015, the Co-worker told Complainant that he knows how to effectively use a telephoto lens to intimidate her and convince her that he could spy on her, undetected, if he decided to do so; 9. From Fall 2014 through Summer 2015, the Co-worker intimidated Complainant by telling her that he has used his technical skills to tie a former colleague's vehicular brake pedal to the horn so that if the former colleague activated his breaks the horn would sound; 10. From Fall 2014 through Summer 2015, the Co-worker pulled out the glove box in Complainant's car and said that if he wanted to beacon her he could use the revealed hidden area as the beacon host; 11. From Fall 2014 through Summer 2015, the Co-worker told Complainant that if she kept him "happy" he would help her get selected to be on a surveillance team program and get her faired because he was formerly assigned to the Office of Security; 12. From December 21, 2014, through Summer 2015, the Co-worker told Complainant that he could make it "hard for her" and that he could "end" her application hiring process if she "fucked" with him; 13. In Spring 2015, the Co-worker sprayed a five second burst of canned air in Complainant's face because she did not return his text messages the night before; 14. In early Summer 2015, the Co-worker stated to Complainant that it would lie "sad" if she were to get walked out of the building and then told her that he "takes care of people who are good to him"; 15. In July 2015, the Co-worker scared Complainant by stating to her that he knows her heat number and starting time for her "Go Ruk Race" when that information was not publicly available. 3. Complainant alleges discrimination on the bases of sex (female) and reprisal (opposing a discriminatory practice) when, on or before July 31, 2015, the Co-worker interfered with her application resulting in the Office of Security disapproving Complainant as an applicant for employment. 4. Complainant alleges discrimination on the bases of sex (female) and reprisal (opposing a discriminatory practice) when on August 24, 2015, the Office of Security escorted Complainant out of the "HQS Building" because she did not engage the Co-worker on a social level. 5. Complainant alleges discrimination on the bases of sex (female) and reprisal (opposing a discriminatory practice) when on September 24, 2015, Complainant's home organization placed Complainant on administrative leave, due to her application for employment security disapproval. The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact. The Agency noted that Complainant contacted the Agency in July 2015, but did not express her intent to proceed through the EEO complaint process. Subsequently, on November 16, 2015, Complainant contacted the EEO counselor, beyond the 45 day time limit. The Agency found that the matter should be dismissed pursuant to 29 C.F.R. § 1614.107(a)(2). In addition, the Agency dismissed claims (3) and (4) for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency determined that Complainant alleged in these claims allegations which involved a challenge to the substance of a security clearance determination. The Agency noted that Complainant underwent both a security background investigation and a security testing resulting in negative information. Finally, as to claim (5), the Agency dismissed this claim pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The Agency determined that claim (5) constituted a collateral attack. This appeal followed. Complainant only appealed the Agency's dismissal of claims (1) - (3). Complainant did not challenge claims (4) and (5). As such, we shall not review the Agency's dismissal of claims (4) and (5). As to the dismissal of claims pursuant to 29 C.F.R. § 1614.107(a)(2), Complainant asserted that she had contacted the EEO Counselor in July 2015 with the intention to pursue her claims of discrimination through the EEO complaint process. Complainant indicated that she had followed up with the EEO office and was misled by someone who purported to be an EEO Counselor who would set up meetings at Starbucks and not the EEO Office. Complainant indicated that she followed up with the Agency's EEO Office and then attempted to resurrect her EEO complaint which she first raised in July 2015. As such, Complainant claimed that she contacted the Agency in a timely manner and that the dismissal was not appropriate. As to claim (3), Complainant asserted that she alleged that the Co-worker interfered with her application review process, not the Office of Security's determination. As such, Complainant is not attacking the substance of her security clearance determination. Therefore, the Agency's dismissal of the claim was not appropriate. The Agency asked that the Commission affirm its decision. ANALYSIS AND FINDINGS As Complainant has not challenged the dismissal of claims (4) and (5), the Commission will only address the Agency's dismissal of claims (1) - (3). Claims (1) - (3) The Agency dismissed these claims pursuant to 29 C.F.R. §1614.107(a)(2). 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. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence Complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission. The Commission has previously held that an agency may not dismiss a complaint based on a complainant's untimeliness, if that untimeliness is caused by the Agency's action in misleading or misinforming Complainant. See Wilkinson v. U.S. Postal Serv., EEOC Request No. 05950205 (Mar. 26, 1996). See also Elijah v. Dep't of the Army, EEOC Request No. 05950632 (Mar. 29, 1996) (if Agency officials misled Complainant into waiting to initiate EEO counseling, Agency must extend time limit for contacting EEO Counselor). Complainant asserted on appeal that from July 22, 2015 through August 20, 2015, she spoke with the Deputy Chief of the EEO Office on several occasions about the harassment she experienced. She was told by the Deputy Chief that they were going to open an inquiry into her complaint and she was told that her contact was timely. On September 28, 2015, Complainant was contacted by a man who purported to be following up with the EEO complaint. She was told that they had "forgotten about" Complainant and that they needed to meet on October 5, 2015, at a Starbucks. Complainant called on October 4, 2015, indicating her apprehension about meeting this man at a location outside of the Agency. On October 5, 2015, Complainant met with the EEO Counselor who discouraged her from moving forward with her EEO complaint. On October 20, 2015, Complainant met with the EEO Counselor asking her to sign form stating she did not wish to proceed with her informal EEO complaint which Complainant refused to sign. The EEO Counselor called Complainant in November 2015. When Complainant responded to the call, the EEO Counselor was not available and Complainant spoke with the Deputy Chief to request a Designation of Representative for she now was represented by an attorney (Attorney). As such, Complainant has asserted that she alleged harassment when she contacted the EEO Counselor in July 2015, and based on the information from the Deputy Chief, she believed that her complaint was being investigated. Complainant argued that she was misled by Agency officials into believing that her complaint was being processed. Therefore, she claimed that she made contact in a timely manner in July 2015, not November 2015, as asserted by the Agency. Upon review of the record and Complainant's arguments on appeal, we find that Complainant made contact in July 2015, with the intent to pursue her claim of harassment. Therefore, we find that the Agency's dismissal of claims (1) - (3) pursuant to 29 C.F.R. §1614.107(a)(2) was not appropriate.2 Claim (3) 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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). We note that Complainant alleged that she was subjected to retaliation with respect to claim (3). The Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Id. The Agency dismissed claim (3) finding that Complainant alleged a challenge to the Agency's security clearance determination. We noted that Complainant alleged unlawful retaliation when on July 31, 2015, the Co-worker interfered with her application resulting in the Office of Security disapproving Complainant as an applicant for employment. As such, Complainant is not challenging the Office of Security's action but that the Co-worker interfered with her application due to her complaint of harassment. The Commission has consistently affirmed the dismissal of claims alleging discrimination upon the revocation or denial of a security clearance, finding that such claims are outside the purview of the Commission's jurisdiction. Policy Guidance on the Use of National Security Exception Contained in 703(g) of Title VII of the Civil Rights Act of 1964, EEOC Notice N-915-041 (May 1, 1989). However, the Commission retains authority to review whether the grant, denial, or revocation of a security clearance was carried out in a discriminatory manner. See Fonda-Wall v. Dep't of Justice, EEOC Appeal No. 0720060035 (July 28, 2009). We find that Complainant has set forth an actionable claim in alleging that the Co-worker interfered with her application based on her protected bases. Therefore, we find that the Agency's dismissal of claim (3) was not appropriate. CONCLUSION Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint and we REMAND this matter to the Agency 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. 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 (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 (M0416) 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 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. The requests 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 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 7, 2017 __________________ 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 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, 122 S.Ct. 2061 (June 10, 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. As such, all the events alleged in support of Complainant's claims of harassment identified as claims (1) and (2) are timely. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120162226 10 0120162226