Aline A.,1 Complainant,v.Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Feb 14, 2018

0520170609-2 (E.E.O.C. Feb. 14, 2018)

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

Aline A.,1
Complainant,

v.

Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
Agency.

Request No. 0520170609

Appeal No. 0120171881

Agency No. 5W1C17002

DECISION ON REQUEST FOR RECONSIDERATION

The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Aline A. v. Dep’t of the Air Force, EEOC Appeal No.
0120171881 (Aug. 9, 2017). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29
C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29
C.F.R. § 1614.405(c).

On March 1, 2017, Complainant filed a formal EEO complaint alleging that the Agency
subjected her to discrimination and a hostile work environment on the bases of race (Asian),
national origin (Japanese), sex (female), and in reprisal for prior protected EEO activity as
evidenced by multiple incidents of sexual and non-sexual harassment involving her co-worker, a
union official.

On April 4, 2017, the Agency issued a final decision dismissing the complaint pursuant to 29
C.F.R. § 1614.107(a)(1) for failure to state a claim. Complainant appealed and, in Aline A. v.
Dep’t of the Air Force, EEOC Appeal No. 0120171881 (Aug. 9, 2017), the Commission vacated

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’s dismissal and remanded the complaint for further processing. The Commission
determined that viewing the allegations together and assuming they occurred as alleged,
Complainant stated a viable claim of a discriminatory and retaliatory hostile work environment.

In its request for reconsideration, the Agency notes that the Commission issued its decision prior
to the Agency’s submission of its brief in response to the appeal and includes the brief as its
request for reconsideration. Therein, the Agency argues that its dismissal was proper because it
has no control over the actions of Union members. The Agency contends that the Union is the
proper party against whom this claim should be filed. Accordingly, the Agency requests that the
Commission grant its request.

Upon review, the Commission acknowledges that it issued the previous decision prematurely.
The Commission granted Complainant two extensions to file her brief in support of her appeal
and erroneously issued the appellate decision prior to the expiration of the Agency’s extended
briefing period. Nonetheless, the Commission has reviewed the brief that the Agency intended
to submit and finds that this oversight amounted to harmless error as the arguments raised by the
Agency would not have changed the analysis or final disposition of the previous decision. The
record demonstrates that Complainant is an Agency employee who has alleged numerous
incidents of harassing conduct by another Agency employee while working at the Agency’s
facility. The Agency is the proper party against whom this complaint was filed as Complainant
has established that she is an aggrieved employee who has suffered a present harm or loss with
respect to a term, condition, or privilege of employment for which there is a remedy.2

A reconsideration request is an opportunity to demonstrate that the appellate decision involved a
clearly erroneous interpretation of material fact or law, or will have a substantial impact on the
policies, practices, or operations of the Agency. The Agency has not done so here. The Agency
has not presented any evidence to support reconsideration of the Commission’s finding that
Complainant has stated a viable claim of a discriminatory and retaliatory hostile work
environment. As such, the Agency has not put forth any persuasive arguments to support
granting the request for reconsideration.

After reviewing the previous decision and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the
Commission to DENY the request. The decision in EEOC Appeal No. 0120171881 remains the
Commission's decision. There is no further right of administrative appeal on the decision of the
Commission on this request. The Agency shall comply with the Order as set forth below.

2 The Commission notes that a similar complaint was filed by another co-worker against the
same alleged harasser in Alba H. v. Dep’t of the Air Force, Appeal No. 0120171882 (Aug. 19,
2017). The Commission vacated the Agency’s dismissal of that complaint for failure to state a
claim as well.
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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 (K0617)
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 in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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.
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,
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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

February 14, 2018
Date