Bryon F,1 Complainant,v.Matthew P. Donovan, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Dec 26, 2019

2019005146 (E.E.O.C. Dec. 26, 2019)

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

Bryon F,1
Complainant,

v.

Matthew P. Donovan,
Acting Secretary,
Department of the Air Force,
Agency.

Appeal No. 2019005146

Agency No. 9M0R1900327

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated June 29, 2019, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a NAF IT Assistant
Director, GS-2210-12, at the Agency’s Anchorage, JBER facility in Anchorage, Alaska.

The record indicates that, on December 20, 2018, and again on January 15, 2019, Complainant
made contact with an EEO counselor to initiate the EEO process. On April 19, 2019,
Complainant filed a formal complaint alleging that the Agency subjected him to a hostile work
environment and discrimination on the bases of race (African-American) and reprisal for prior
protected EEO activity under Title VII, when:

1. on June 15, 2018, the Director NAF IT stated to Complainant, after a meet-and-
greet re-introduction, that all the reports indicated that Complainant was trying to
take his IT shop from him;

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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2. on or about October 9, 2018, the Director inquired as to where the rest of the staff
was and Complainant indicated they were working as they should be, since the
Director had not invited them;
3. on December 13, 2018, Complainant received an email from the Director stating
that he would no longer put up with Complainant’s insubordination and disregard
of authority;
4. in December of 2018, the Director asked the Flight Chief on several occasions if
he could direct Complainant to do what he wanted him to do;
5. on December 20, 2018, during his midterm-interview, the Director gave
Complainant a substandard evaluation, stating the problems of the department
were directly related to Complainant’s lack of leadership and proficiency; and
6. on January 23, 2019, the Director “defined why he should have never hired”
Complainant and the Director also stated that, before the Director offered
Complainant the position, “people” told him he should not hire Complainant.

The pertinent record shows that Complainant is the only African-American employed at the
facility. Complainant and the Director share certain management duties. In his complaint,
Complainant stated that he was part of a workplace environment investigation focused on the
actions of the Director in creating an alleged hostile work environment, in which he and others
provided written statements. Complainant asserts that the manager being investigated was
allowed to read all of the statements, including Complainant’s statement, and harbored ill will
towards him because of it. Complainant alleged that upper management took failed to protect
those who testified during the harassment investigation.

The record further indicates that, on March 15, 2019, various management officials were
interviewed regarding Complainant’s own harassment/hostile work environment complaint
against the Director.

On May 31, 2019, after Complainant’s formal complaint was filed, Complainant was issued a
“Decision to Reprimand Letter.” The letter advised Complainant that “if he considered this
action to be improper, he may submit a grievance in accordance with the Administrative
Grievance procedures.” The record includes emails that indicate Complainant sought to add the
additional issue of the reprimand as part of his original complaint.

On June 19, 2019, Complainant was told by the Agency’s EEO office that it could not accept his
reprimand claim because the office did not handle grievances and because the reprimand had not
been raised during the EEO counseling of this complaint. Complainant then informed the EEO
office that if he was not going to be permitted to add the “letter of reprimand” as a “like and
related” issue to his current complaint, he asked that the EEO office to “please move my
complaint on, because [he] did not want the complaint to be delayed any longer.”

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On June 29, 2019, the Agency issued a final decision dismissing the complaint for failing to state
a claim and for untimely EEO contact because the Agency concluded that the claims were
outside of the 45-day timeframe. The Agency did not further elaborate on its reasons beyond
stating that the claims will not be investigated.

This appeal followed. Instead of a brief, Complainant included a series of emails in support of
his appeal. Complainant asserts that he is being subject to ongoing retaliation, based on his
participating in a “prior CDI/EEO investigation” against the Director involving a hostile work
environment. Complainant asserts that he has been subjected to “ongoing, microaggresive,
micromanagement and subversive processes since [the Director’s] re-introduction to the active
staff on or about June 2018 to present.”

ANALYSIS AND FINDINGS

Under the regulation set forth at 29 C.F.R. Par t 1614, 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, 1614.106(a). Retaliation is also covered
by Title VII. The Commission's federal sector case precedent has long defined an 11 aggrieved
employee 11 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).

In this case, a fair reading of the complaint, in conjunction with the related EEO counseling
report, shows that Complainant was alleging that he had been subjected to a hostile work
environment through a series of related incidents based on his race and retaliation after he
participated in a harassment investigation involving the Director and after he initiated EEO
contact for his own EEO complaint. We construe Complainant as alleging a viable claim of race
discrimination and/or unlawful retaliation sufficient to create a hostile work environment in
violation of Title VII that management failed to resolve. In this case, Complainant also alleges
that he was given a substandard evaluation and humiliated after he raised his harassment
concerns with an EEO counselor. We recognize that there is an issue regarding whether
Complainant had engaged in prior protected EEO activity, but this issue goes to the merits of
the complaint and does not determine the procedural issue of whether the complaint stated a
justiciable claim under the EEO laws. See Tim H. v. US. Postal Serv., EEOC Appeal No.
0120180329 (February 7, 2018).

Moreover, the burden is on the Agency to establish that Complainant’s claims were untimely
raised with the EEO Counselor. We find that the Agency did not show that his EEO contact was
untimely. Complainant contacted an EEO counselor on January 15, 2019, and his complaint
concerns some incidents that occurred in December 2018, including his evaluation. A
substandard evaluation states a claim. We also find that he raised a related issue pertaining to the
issuance of a reprimand and sought to include that issue in this complaint. We find that the issue
is like or related to the ongoing harassment claims that were timely presented in this complaint.
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For all of these reasons, we find that Complainant has shown an injury or harm to a term,
condition, or privilege of employment for which there is a remedy. See Diaz v. Dep’t of the Air
Force, EEOC Request No. 05931049 (April 21, 1994). Upon review, we find that Complainant's
complaint was improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a
claim.

CONCLUSION

Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint.
We REMAND the complaint to the Agency for further processing in accordance with this
decision and the Order below.

ORDER (E0618)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108
et seq. 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.
As provided in the statement entitled "Implementation of the Commission's Decision,” the
Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of
acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the
investigative file and notice of rights, and 3) either a copy of the complainant’s request for a
hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did
not receive a response from complainant by the end of the election period.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
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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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.
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 tends 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 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.
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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

December 26, 2019
Date