Avery S.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Nov 28, 2018

0120182236 (E.E.O.C. Nov. 28, 2018)

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

Avery S.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120182236

Agency No. DON 18-00178-01409

DECISION

On June 15, 2018, Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final Agency decision dated May 24, 2018,
dismissing his 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

At the time of events giving rise to this equal employment opportunity (EEO) complaint,
Complainant was employed by the Agency as a Mechanical Engineer, ND-830-04 at the Naval
Surface Warfare Center Dahlgren Division (NSWCDD) in Dahlgren, Virginia.

On April 25, 2018, Complainant filed an EEO complaint (“Complaint 2”) alleging that the Agency
subjected him to discrimination and harassment based on his national origin (Ukrainian) and
reprisal for prior protected EEO activity under Title VII and the ADEA 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.
0120182236

2
1. On or about March 1, 2018, by direction of an Agency Assistant Counsel, a Litigation Hold
Notice for Coworker 1’s2 EEO complaint was sent to Complainant and others that:3

a. Identified Coworker 1 by name and his claims without security precautions, such
as encryption and warnings that the Notice was sensitive and not to be shared with
third parties;

b. Encouraged further spread of the above sensitive information by instructing
recipients to contact the Assistant Counsel if they were aware of information or
documents that should be preserved by other individuals, in any form and location,
e.g., paper, voicemail, electronic, on computers, phones, media storage devices,
etc., both inside and outside the Agency, and instructing Notice recipients to notify
appropriate Information Technology (IT) or administrators of information subject
to the hold of the preservation obligation;

c. Directed he gather information that attacked and invaded his “zone of… interests”
by requiring he find things on Coworker 1, his key witness and obtain information
from Complainant’s personal home computer and Blackberry, including personal
emails and voicemails;

d. Gave only five days to comply, an unreasonably short time which subjected him to
“entrap[ment]” and “blame” for noncompliance, in that complying with the Notice
would take 1 – 2 months of work;

e. Not warning that gathering certain information could lead to criminal exposure,
e.g., requesting recorded telephone information, without warning that tape-
recording telephone conversations is illegal;

f. Expected him to work without compensation since he was not given a charge code
for the litigation hold activity;

g. Threatened that failure to preserve (destroying) information subject to the to the
hold without the Assistant Counsel’s prior approval may subject him to sanctions
or other adverse consequences;

h. Disrespectfully addressed him as the recipient by his email address (the Notice was
sent via email) rather than in a dignified matter, i.e., as “Mr.” or “Dr.”, followed by
his name, and

2 According to Complainant, Coworker 1 is a key witness for his prior pending EEO complaint
(“Complaint 1”), and he is a key witness for Coworker 1’s EEO complaint.

3 The Agency defined Complaint 2 in the FAD. We have redefined Complaint 2 to better capture
the complaint.
0120182236

3
2. The Agency continues to tamper with his witness via bribes and intimidation, and continues
to engage in harassment.4

The Agency dismissed the entire complaint for failure to state a claim. It reasoned that
Complainant was using EEO Complaint 2 to collaterally attack the discovery process of another
EEO complaint. The instant appeal followed.

Complainant argues that the Agency did not address why it was proper or allowable for the
Litigation Hold Notice to contain things he found objectionable, and reiterates his claims.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.107(a)(8) requires the dismissal of claims that allege
dissatisfaction with the processing of a previously filed complaint. We find that Complainant’s
claims regarding the Agency Litigation Hold Notice for Coworker 1’s complaint are covered by
this regulation. Accordingly, issue 1 is dismissed.

4 In Complaint 2, Complainant recounted that in 2016, the Agency tampered with two witnesses –
Coworker 1 and the Branch Secretary, and this was presented in the Complaint 1 report of
investigation (ROI). In Complaint 2 he elaborated that the Agency bribed Coworker 1 to withdraw
Coworker 1’s complaint by offering him a promotion to Branch Head, and when Coworker 1
declined, attacked Coworker 1. We note that the March 1, 2018 Litigation Hold Notice represented
that Coworker 1 alleged in his EEO complaint that he was offered the Branch Head position in
what he believed was an effort to have him withdraw his EEO complaint. A review of the
Complaint 1 ROI reveals that in May 2016, Complainant wrote that management criticized his and
Coworker 1’s performance in April 2016 because of their EEO activity. Complainant further
contended in Complaint 2 that in 2016, management intimidated the Branch Secretary, so he could
not use her as a witness, by accusing her of missing 29 minutes of work and not paying her for two
weeks of work. A review of the Complaint 1 ROI reveals that in September 2016, Complainant
emailed the EEO investigator that he wanted to withdraw the Branch Secretary as a witness in that
she was under a time card investigation for 29 minutes, and there were rumors that Agency
management and Human Resources made a deal with her that they would only charge her for 29
minutes (it was rumored there were many more) and not pay her for two weeks if she agreed to
testify against him and Coworker 1. Apparently unbeknownst to Complainant, in July 2016, the
Branch Secretary submitted a declaration to the investigator on Complaint 1, mostly indicating
that she did not have information on the matters solicited. Complainant further elaborated in
Complaint 2 that the Agency “attacked” his wife, as can be seen in the 2016 Complaint 1 ROI. A
review of the Complaint 1 ROI reveals that the Agency defined Complaint 1 as including claims
that in March 2016, the Agency asked Complainant questions pertaining to his belief that the
Agency Branch Chief Engineer organized a social media attack against his wife, and a message
was left on his wife’s cell phone, creating stress.
0120182236

4
While Complainant recounted in Complaint 2 that during the investigation of Complaint 1
information was presented on the Agency tampering with his witnesses via bribery5 and
intimidation and harassing his wife, and alleged in Complaint 2 that this continues, he identified
no new incidents to the EEO counselor for Complaint 2, on the face of Complaint 2 itself, or on
appeal. Accordingly, we find that issue 2 fails to state a claim. To the extent Complainant believes
that the Agency has tampered with his witnesses for Complaint 1, he may raise this with the Equal
Employment Opportunity Commission Administrative Judge (AJ) assigned to Complaint 1, which
is currently pending in an EEOC Hearings Unit.

The FAD is AFFIRMED.

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

5 We take administrative notice that on September 6, 2018, an AJ with the EEOC issued a decision
without a hearing on Coworker 1’s EEO complaint. The AJ found that management discussion
with Coworker 1 in February 2016, concerning his acting as a Branch Head was not discriminatory,
that management did not ask him to withdraw his EEO complaint when discussing this, and found
no harassment, for example, regarding negative remarks about his performance during his mid-
year performance evaluation in April 2016. EEOC Hearing No. 430-2017-00032X. We are
unaware of the status of Coworker 1’s complaint at this point.
0120182236

5
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 (S0610)
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. 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 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

November 28, 2018
Date