Jene M.,1 Complainant,v.Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Apr 11, 2018

0520180066 (E.E.O.C. Apr. 11, 2018)

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

Jene M.,1
Complainant,

v.

Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.

Request No. 0520180066

Appeal No. 0120172088

Agency No. 2017-27292-FAA-02

DECISION ON REQUEST FOR RECONSIDERATION

The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120172088 (September 12, 2017).
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 the underlying decision, Complainant alleged that the Agency subjected her to discrimination
on the bases of race (African-American), age (60 years old), and reprisal (for prior protected
activity) when: (a) on May 15, 2016, Complainant’s manager told her he was sending her on a
14-week training program that would start around July 13, 2016, but until then, Complainant had
nothing to do all day. Complainant declined the training, but her manager told her it was not
optional; (b) on May 15, 2016, Complainant’s manager removed her as the Assistant Contracting
Officer Representative (ACOR) for the TAMR Program, and no reason was given.
Complainant's ACOR duties comprised about three-fourths of her day, but no other duties were

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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assigned; and (c) on October 31, 2016, Complainant’s manager provided her with a performance
appraisal with new duties, but the manager did not provide Complainant any work.

Our previous decision affirmed the Agency’s dismissal of Claims A and B because Complainant
had previously contacted an EEO Counselor on these same claims, in June 2016, under Agency
No. 2016-26940-FAA.

We also reversed the Agency’s dismissal of Claim C. As noted previously, a fair reading of the
record shows that Complainant requested work from her supervisor on October 31, 2016, and
again on January 24, 2017. According to Complainant on October 31, 2016, her supervisor
clarified Complainant’s duties but declined to assign her work. Complainant stated that she
languished at her desk over the next three months despite her effort to find assignments and
offers to help coworkers. On January 24, 2017, Complainant emailed her supervisor to request
work and received two documents to proofread. Our previous decision also found that on
appeal and in a February 2017 correspondence with the EEO counselor, Complainant described
her supervisor withholding work as a pattern of ongoing retaliatory harassment. Our previous
decision concluded that Complainant’s EEO Counselor contact on that date was timely for
purposes of 29 C.F.R. § 1614.105(a)(2). Accordingly, our previous decision concluded that the
Agency improperly dismissed Claim C for untimely EEO counselor contact since Claim C
should have been addressed as a claim of harassment that began on October 31, 2016 and
continued after January 24, 2017.

In its request for reconsideration, the Agency argues that even if Complainant’s EEO counselor
contact was timely as to Claim C, the previous decision erred in finding that Complainant had
stated a claim of harassment. The Agency concedes that denial of work over an extended period
could make an employee “aggrieved” and able to state a claim, but asserts that in this instance
the failure to receive work in two isolated situations during a span of less than three months is
insufficient to constitute a harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. The Agency’s arguments (which we have previously
rejected) generally focus on the minimal number of specific examples provided by Complainant
to support her allegation of harassment.2 However, it is clear from her statements that she was
repeatedly denied work over a continuing period. The details of Complainant’s alleged pattern
of harassment are something that should be developed during the investigation. Williams S. v.
U.S. Postal Ser’v., EEOC Appeal 0120152605 (Dec. 2, 2015).3 We find that Complainant has

2 See eg. Russ B. v. U.S. Postal Ser’v., EEOC Appeal No. 0120160154 (Feb. 12, 2016)
(harassment alleged despite minimal specifics initially articulated).
3 A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt
that the complainant cannot prove a set of facts in support of the claim which would entitle the
complainant to relief. The trier of fact must consider all of the alleged harassing incidents and
remarks, and considering them together in the light most favorable to the complainant, determine
whether they are sufficient to state a claim. Cobb v. Department of the Treasury, EEOC Request
No. 05970077 (March 13, 1997). Moreover, regarding the basis of reprisal, the Commission has
a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Dep’t of the
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sufficiently alleged a claim of harassment, and that the Agency’s arguments that she has not go
to the merits of her claim and not to the procedural question of whether she has stated a claim
sufficient to be accepted for investigation.

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. The decision in EEOC Appeal No. 0120172088 remains the
Commission's decision. There is no further right of administrative appeal on the decision of the
Commission on this request.

ORDER

The Agency is ORDERED to process the remanded harassment/hostile work environment (claim
(C)) in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to Complainant
that it has received the remanded claim 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
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.

Army, EEOC Request No. 05970939 (Apr. 4, 2000). Under Commission policy, claimed
retaliatory actions which can be challenged are not restricted to those which affect a term or
condition of employment. Rather, a complainant is protected from any discrimination that is
reasonably likely to deter protected activity. See EEOC Compliance Manual Section 8,
“Retaliation,” No. 915.003 at 8-15 (May 20, 1998).
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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.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (Q0610)

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,
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

April 11, 2018
Date