Complainant,v.Eric Fanning, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Jan 8, 2014

0120122673 (E.E.O.C. Jan. 8, 2014)

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

,
Complainant,

v.

Eric Fanning,
Acting Secretary,
Department of the Air Force,
Agency.

Appeal No. 0120122673

Agency No. 6ROM1106

DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May
15, 2012, dismissing her complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and Section 501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 791 et seq

. Upon review, the
Commission finds that Complainant's complaint was properly dismissed in part and improperly
dismissed in part pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contract
Specialist, GS-11, at the Agency’s work facility in Marietta, Georgia. On February 29, 2012,
Complainant filed a formal complaint wherein she claimed that the Agency subjected her to
discriminatory harassment on the bases of her race (Caucasian), color (White), and in reprisal
for her prior protected EEO activity when:

1. On or about July 21, 2011, and July 26, 2011, a coworker allegedly struck
Complainant by repeatedly pushing her and elbowing her in the side.

2. Beginning on or about July 27, 2011, the Agency failed to discipline the
aforementioned coworker for striking Complainant, which constitutes a violation
of the Agency’s policy against workplace violence.

3. The Agency unjustifiably delayed in responding to Complainant’s initial EEO
contact of July 26, 2011.

0120122673

2
On May 15, 2012, the Agency issued a final decision dismissing the complaint pursuant to 29
C.F.R. § 1614.107(a)(1) on the grounds of failure to state a claim. The Agency determined
that Complainant failed to show that she had been harmed with regard to the terms or
conditions of her employment.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that in light of her bipolar disorder, the physical violence
committed against her by her coworker caused her to become more fearful, anxious and
depressed. Complainant maintains that the Agency has taken no action to address the physical
abuse against her. Complainant notes that the Agency’s refusal to discipline her coworker
occurred shortly after she initiated EEO activity, thus establishing retaliatory motivation.
Complainant argues that management and coworkers do not treat African-Americans in the
same hostile manner that she has been treated. With respect to the Agency’s delay in
addressing her complaint, Complainant contends that she e-mailed the EEO Office on July 26,
2011, requesting to file an EEO complaint, but that the EEO Office did not follow up on her
inquiry until she contacted the EEO Office again on September 1, 2011.

In response, the Agency asserts that there is no evidence that Complainant’s supervisors
discriminated against her. The Agency points out that as soon as the supervisors learned of the
alleged physical action against Complainant, they met with the coworker who allegedly
attacked Complainant as well as other members of the office so they could determine whether a
discriminatory act occurred. The Agency maintains that it took prompt, effective measures
and therefore cannot be held liable even if the coworker committed the alleged acts of
discrimination.

ANALYSIS AND FINDINGS
Upon review of the record, we find that the claim that Complainant was struck, pushed and
elbowed by a coworker on two occasions is of sufficient severity to constitute a claim of
harassment. The Agency’s determination that the alleged incidents did not occur and that even
if they did occur, management took prompt and effective measures to address the claim, is an
issue that goes to the merits of the claim. We further find that claim (2), dealing with the
Agency’s failure to discipline the alleged harassing coworker, is part of the harassment claim.
Accordingly, the Agency’s dismissal of claims (1-2) on the grounds of failure to state a claim
was improper and is REVERSED.

As for claim (3) which involves the Agency’s alleged delay in processing the instant complaint,
the Agency properly dismissed this claim as it constitutes a spin-off complaint. EEOC
Regulation 29 C.F.R. § 1614.107(a)(8) provides for the dismissal of spin-off complaints,
which are complaints about the processing of existing complaints. It provides instead that
complaints about the processing of existing complaints should be referred to the Agency
official responsible for processing, and/or processed as part of the original complaint as set
forth in the Equal Employment Opportunity Management Directive 110 for 29 C.F.R. Part
0120122673

3
1614 (EEO MD-110), Chapter 5, III(F) (November 9, 1999). Complainant is alleging
dissatisfaction with the processing of her existing complaint and, thus, this matter is not
actionable as a separate claim. This matter should be referred to the Agency official
responsible for the quality of complaint processing.

CONCLUSION
Accordingly, the Agency's final decision is MODIFIED. The dismissal of claim (3) is
AFFIRMED. The dismissal of claims (1-2) is REVERSED, and the claim of harassment,
comprised of the alleged altercations and failure to discipline, is hereby remanded to the
Agency for further processing in accordance with this decision and the Order below.

ORDER

(E0610)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R.
§ 1614.108. 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
0120122673

4
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,
0120122673

5
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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
January 8, 2014