0120161286
04-22-2016
Alvaro M.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alvaro M.,1
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120161286
Agency No. ARCEBALT15JAN05506
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 5, 2016, 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 an Engineering Technician at the Agency's U.S. Army Engineer District of Baltimore facility in Baltimore, Maryland.
On October 5, 2015, Complainant filed the instant formal complaint. Therein, Complainant claimed that he was subjected to harassment and a hostile work environment on the bases of race, sex, color, age, and in reprisal for prior EEO activity.
On January 5, 2016, the Agency issued a final decision. Therein, the Agency determined that the formal complaint was comprised of the following alleged events:
a. on January 12, 2015, "while talking to a co-worker (back turn) the co-worker noticed that [a named Chief, Engineering Division] scowled and rolled his eyes at [Complainant];"
b. a January 14, 2015 meeting with [Chief, Engineering Division] to discuss (1) application process and discrepancy, (2) personnel issues and (3) insisting that he present me with a plaque recognizing my 30 years of service at a ceremony in front of the section;
c. on February 3, 2015, "[Chief, Engineering Division] and [Chief, Military Design Branch] and another employee entered the CADD/BIM cubicle did not speak or acknowledge my entrance or my presence. This was the day after the follow up meeting with EEO. It appeared to be more than a coincidence;"
d. on February 5, 2015, "in route to me cubicle, [Chief, Engineering Division] veered directly from his line of walking into my path so much that I had to turn sideways...;" and
e. from April 1, 2015 to April 15, 2015, "[Chief, Military Design Branch's] behavior of sneering angrily, contorting her facial expression towards me were behaviors to show contempt for inquiries resultant from my EEO complaint."
The Agency dismissed the formal complaint for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1), finding that Complainant was not aggrieved. The Agency found that unless the conduct is severe, a single incident or group of isolated incidents will not be considered discriminatory harassment.
Complainant, on appeal, states that he is subjected to ongoing harassment. For instance, Complainant states that the incidents detailed in his complaint "were acts of reprisal for my reporting discrimination by supervisors to the District Engineer and subsequently filing an EEO complaint of discrimination. These are acts of retaliation designed to intimidate me."
The instant appeal followed.
ANALYSIS AND FINDINGS
The Agency improperly dismissed the instant formal complaint for failure to state a claim. 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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
A review of the instant formal complaint and EEO Counselor's Report reflects that Complainant addressed more matters than the claim identified by the Agency in its final decision. In his formal complaint, Complainant stated "the impediments and snares to equal workplace opportunity for advancement, workplace stability, workplace well being, and workplace hostility are not committed against white peers in the design branch nor the engineering division. Acts abusing workplace authority, workplace position, and workplace protocol were used to publicly embarrass, subjugate, me personally and limit any request for consideration of achievement or motivation for advancement within the design branch and engineering division while, no remotely similar acts were committed against my white peers."
As a remedy, Complainant requested that that the harassment cease, to be relieved form the "oppressive supervision" of [Chief, Military Design Branch] by be promoted to a GS-0802-11/12 level with all rights as other similarly situated comparable Caucasian employees, sensitivity training for management, and back pay. Given the breadth of Complainant's claims as noted above, a fair reading of the record reflects that he is alleging a pattern of harassment, and has therefore stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993).
We REVERSE the Agency's final decision dismissing Complainant's formal complaint, defined herein as a harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ordered to process the remanded claim (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 claim 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. If you file a request to reconsider and also file a civil action, 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 Complainants 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
April 22, 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.
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