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

Equal Employment Opportunity Commission

Oct 12, 2018

0520180423 (E.E.O.C. Oct. 12, 2018)

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

Brant C.,1
Complainant,

v.

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

Request No. 0520180423

Appeal No. 0120181203

Agency No. 8L1M1800004

DECISION ON REQUEST FOR RECONSIDERATION

Complainant requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120181203 (May 2, 2018). 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).

In his underlying complaint filed on December 14, 2017, Complainant alleged that he was
discriminated against the basis of sex (male) when:

a. On or about September 2015, [named Agency Official, Vice Director (VD)]
elected not to interview Complainant for an 00-ALC-OM (Director of Staff) GS-
15 competitive promotion within the Maintenance Complex;

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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b. On or about September 2015, [VD] elected not to interview Complainant for an
00-ALC-/OM (Chief of Business Operations) GS-15 competitive promotion within
the Maintenance Complex;

c. On or about July/August 2015 [VD] mimicked Complainant by
grabbing/situating her crotch;

d. On or about April/May 2014, [VD] inappropriately discussed her personal
concerns related to [Complainant] with personnel outside of [Complainant's] chain
of command;

e. On or about September 2015, [VD] manipulated witnesses during the course of
a Commander Directed Investigation (CDI); and

f. On or about July 2017 Complainant discovered [VD] demonstrated disparate
treatment towards Complainant as compared to other senior leaders whose actions
were far more severe than [Complainant's] proven actions.

Complainant said that he felt he had been discriminated against based on his sex with nonsexual
harassment and sexual harassment by the Vice Director because she failed to interview him for
two positions, provided an unfair biased hiring process, made demeaning and sexual comments
inside and outside the organization, mimicked grabbing her crotch while stating that it would be a
cold day in hell before Complainant would receive another GS-15 interview in her organization.

Complainant initiated contact with an EEO Counselor on August 25, 2017.

The Agency issued a final decision dismissing Claims (a)-(e) for untimely EEO Counselor contact
and Claim (f) for failure to state a claim and untimely EEO Counselor contact. The Agency
explained that Complainant failed to contact the EEO Counselor within 45 days of the alleged
2014 and 2015 discriminatory events; therefore, these claims were untimely. On appeal, the EEOC
concurred with the Agency’s dismissal but for different reasons.

As a matter of background, the record indicated that the Agency received several employee
complaints about Complainant citing inappropriate supervisory conduct. The Agency investigated
and issued a Notice of Proposed Downgrade on March 24, 2016, for the offense of: Conduct
Unbecoming a Supervisor based on the investigation’s findings. Complainant challenged the
disciplinary action, and on June 8, 2016, the Agency withdrew the Notice and issued a Pre-
Decisional Agreement. Under the terms of this Agreement, in relevant part, the Agency agreed to
reduce the discipline from a Downgrade to a 5-day Suspension, directed Complainant’s
reassignment to a nonsupervisory position of equivalent grade and pay, barred Complainant from
applying for, or accepting, any supervisory position with AFB, Utah, for a period of five years.
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The Agreement also required Complainant to “waive any appeal rights to the Equal Employment
Opportunity Commission and all additional relief, remedies, and causes of action of all kinds
against the Air Force and its officers, managers, supervisors, and employees based upon facts
arising before the date of execution of this agreement, including any rights and claims under the
Age Discrimination Employment Act, the Older Workers Benefit Protection Act, Title VII of the
Civil Rights Act of 1964, amended, the Equal Pay Act, the Rehabilitation Act, and any other
federal, state, or local laws or regulations prohibiting employment discrimination.” Finally, the
Agreement stated that any violation of the terms would constitute a violation of the Agreement
and would result in Complainant’s immediate downgrade, with no advance notice.

The Commission considered the Agency’s argument that Complainant had signed a 2016 Pre-
Decisional Agreement, waiving his right to appeal to the EEOC “causes of action of all kinds
against the Air Force and its officers, managers, supervisors, and employees based upon facts
arising before the date of execution of this agreement.” On this basis, the Commission decided
that Complainant’s claims (a)-(e), alleging 2014 and 2015 discriminatory events, should be
dismissed for failure to state a claim because he had waived his right to raise them when he signed
the 2016 Pre-Decisional Agreement. The Commission also decided that, even though Claim (f)
alleged events in July 2017, it concurred with the Agency that Complainant had raised this matter
before the execution of the 2016 Pre-Decisional Agreement because he had mentioned in 2016
that he was treated more severely compared to other senior leaders. Accordingly, the Commission
found that events in Claim (f) were also settled by the June 2016 agreement and Complainant had
thus waived his right to appeal them to the EEOC. The previous decision found that Complainant
had failed to state a claim for the entire complaint, and that the Agency properly dismissed his
complaint.

On reconsideration, Complainant contends that the Commission’s previous decision is incorrect
because the Agreement on which it relied to affirm the Agency’s dismissal of his complaint was
declared null and void by the Agency. In his brief, Complainant states that the Agreement
precluded him from seeking a supervisory position for five years. However, on or about September
20, 2017, Complainant applied to become an Industrial Production Manager, which would serve
as a second level supervisor. Accordingly, on December 4, 2017, the Agency issued a Notice of a
Decision to Downgrade Complainant because his application was a direct violation of the 2016
Pre-Decisional Agreement. On December 20, 2017, Complainant’s attorney contacted the Agency
seeking clarification about the Agreement’s viability following the execution of the discipline. In
response, Agency management declared the 2016 Agreement “null and void.”

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. Notably, Complainant argues his December 14, 2017 complaint should be
reinstated because the 2016 Agreement was no longer valid after the Agency issued its discipline
on December 4, 2017.
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The record indicates, however that the Agency did not void the 2016 Agreement until December
20, 2017 after Complainant filed his December 4, 2017 complaint. Hence, the waiver provision
of the 2016 Agreement was still in effect when he filed his complaint. Thus, it was reasonable for
the Commission to conclude that Complainant was precluded from raising the claims in his
complaint, which all predated the 2016 Agreement.

However, even if it were true that the waiver provisions in the 2016 agreement were no longer
applied, it is undisputed that Complainant initiated contact with an EEO counselor concerning the
Agency’s 2014 and 2015 alleged discriminatory actions well beyond the 45-day timeframe. In his
defense, Complainant argues that he did not form a suspicion that the Agency’s actions were
discriminatory until he was told on July 17, 2017, August 7, 2017, and August 23, 2017 that VD
stated to two coworkers "that it will be a cold day in hell before [Complainant] receives another
GS-15 interview in her organization." There is no indication that this statement implied a
discriminatory motive on the part of VD. Thus, we find that Complainant should have reasonably
suspected discrimination more than 45 days before his initial EEO Counselor contact.

Accordingly, we do not find that the prior Commission decision involved a clearly erroneous
interpretation of material fact or law; or that it will have a substantial impact on the policies,
practices, or operations of the Agency. Therefore, the decision in EEOC Appeal No. 0120181203
remains the Commission's decision. There is no further right of administrative appeal on the
decision of the Commission on this request.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)

This decision of the Commission is final, and there is no further right of administrative appeal
from the Commission’s decision. 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.

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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

October 12, 2018
Date