0120180346
01-18-2018
Caleb M,1 Complainant, v. James N. Mattis, Secretary, Department of Defense, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Caleb M,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense,
Agency.
Appeal No. 0120180346
Agency No. 2017-PFPA-062
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated October 3, 2017, 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 Police Officer at the Agency's Pentagon Force Protection Agency facility in Washington, D.C.
On July 23, 2017, Complainant contacted the EEO office alleging discrimination. Specifically, he submitted a document entitled "Harassment Complaint." He indicated that immediately following his suspension, he returned to full duty where he was met with harassment by the Sergeant. Complainant noted that he had previously filed an EEO complaint against the Sergeant. Complainant stated that the Sergeant would say "What's up [Complainant]?" in a tone that was not favorable; more teasing than genuine. Complainant asserted that this was taunting and felt it was connected to his prior complaint. He believed that he had been subjected to harassment. He has informed his chain of command about the harassment. Rather than addressing the harassment, Complainant claimed that management summoned him to discuss the complaint.
On September 5, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when he was subjected to harassment. In support of his complaint, Complainant provided a narrative which indicated that since he returned from his suspension on April 26, 2017, the Sergeant has inflicted a form of taunting toward him during line inspections. He also noted that the harassment continued when on June 17, 2017, during roll call, the Captain asked probing questions about Complainant's EEO complaint and his current issues of harassment and she summoned him to her office. On June 6, 2017, the Captain escorted Complainant to the mailroom in the facility along with a Lieutenant to counsel him about comments he made. They asked him "who is the potential insider threat?" Complainant replied "management" and he was pressed again. Complainant believed that he was made to feel uncomfortable for having filed a prior EEO complaint.
The Agency dismissed the complaint as a whole. The Agency initially noted that Complainant alleged harassment and identified three separate events, namely:
1) On June 17, 2017, the Captain inquired about the complaint letter submitted by Complainant to management, involving an incident that occurred between Complainant and the Sergeant.
2) On several occasions, including June 7, 2017, the Sergeant asked Complainant, "What's up, [Complainant]?" in a taunting tone.
3) On June 6, 2017, the Captain verbally counseled Complainant regarding his response to the question of "Who is the potential insider threat?" to which Complainant responded each time with the answer of "Management."
The Agency found that Complainant only raised claim (2) with the EEO Counselor. As such, the Agency dismissed claims (1) and (3) pursuant to 29 C.F.R. � 1614.107(a)(2) for failing to bring the events to the attention of the EEO Counselor. The Agency noted that the EEO Counselor did not indicate that these issues were addressed during EEO Counseling. Further, the Agency dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency determine that this was the only basis for Complainant's claim of harassment that was raised before the EEO Counselor and that this event alone was not sufficiently severe or pervasive enough to state a claim of harassment. As such, the Agency dismissed the complaint as a whole.
This appeal followed. Complainant asked that the Commission reverse the Agency's final decision. Specifically, Complainant indicated that the Agency was aware of the events alleged and that the events taken as a whole constituted a viable claim of harassment and retaliatory harassment. The Agency asked that the Commission affirm its final decision dismissing the complaint.
ANALYSIS AND FINDINGS
The Agency dismissed claims (1) and (3) pursuant to 29 C.F.R. � 1614.107(a)(2). The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which raises a matter that has not been brought to the attention of an EEO Counselor, and is not like or related to a matter on which the complainant has received counseling. A later claim or complaint is "like or related" to the original complaint if the later claim or complaint adds to or clarifies the original complaint and could have reasonably been expected to grow out of the original complaint during the investigation. See Scher v. U.S. Postal Serv., EEOC Request No. 05940702 (May 30, 1995); Calhoun v. U.S. Postal Serv., EEOC Request No. 05891068 (Mar. 8, 1990). Upon review of the record, Complainant clearly indicated that he had been subjected to harassment based on race and his prior EEO activity in a document provided to the EEO Counselor during the pre-complaint process and found in the Agency's complaint file. Furthermore, the events alleged were like and related to his claims of retaliatory and race-based harassment. Therefore, we find that the Agency's dismissal of claims (1) and (3) was not appropriate.
The Agency then dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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, disabling condition, genetic information, or reprisal. 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. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot establish that he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
The Commission has held that where, as here, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). In his complaint, Complainant alleged a series of events which allegedly occurred from April 26, 2017 to June 17, 2017. Specifically, Complainant alleged that he was subjected to harassment which created a hostile work environment. Instead of treating these events as incidents of the claim of harassment, however, the Agency looked at them individually. Thus, we find that the Agency acted improperly by treating matters raised in Complainant's complaint in a piecemeal manner. See Meaney v. Dep't of the Treasury, EEOC Request No. 05940169 (Nov. 3, 1994) (an agency should not ignore the "pattern aspect" of a complainant's claims and define the issues in a piecemeal manner where an analogous theme unites the matter complained of). Consequently, when Complainant's claims, namely claims (1), (2) and (3), are viewed in the context of Complainant's complaint of harassment, they state a claim and the Agency's dismissal of those claims for failure to state a claim was improper.
Here, we also note that Complainant has asserted that he was subjected to unlawful retaliation for his prior protected activity. Regarding Complainant's claim of reprisal, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U. S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEOC charge process); see also Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Id. Upon review, we find that Complainant's claim of retaliatory harassment states a claim and the Agency's dismissal was not appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below.
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.
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 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 (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
January 18, 2018
__________________
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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