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

Equal Employment Opportunity Commission

Nov 20, 2018

0120182807 (E.E.O.C. Nov. 20, 2018)

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

Joannie V.,1
Complainant,

v.

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

Appeal No. 0120182807

Agency No. 9B1C1800554

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated July 23, 2018, dismissing a formal 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

During the period at issue, Complainant worked as an Administrative Assistant, NA03-03 for the
Agency at Fort Eustis, Virginia.

On June 5, 2018, Complainant initiated EEO Counselor contact. Informal efforts to resolve her
concerns were not successful.

On July 12, 2018, Complainant filed the instant formal complaint. Complainant claimed that the
Agency subjected her to harassment and a hostile work environment based on race, national
origin, color, and in reprisal for prior protected activity when:

(1) On April 16, 2018, Complainant’s supervisor told Complainant’s co-worker,
TH, that Complainant told the supervisor that TH threatened Complainant.

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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Complainant further contends that this action led to Complainant being informed
that she was the subject of an informal EEO complaint;2

(2) On October 2017, Complainant informed her former supervisor, the Agency’s
Director of Medicine, that a named co-worker, TH was “picking on” Complainant
about what time she clocked in to work. Complainant further contends that this
action led to Complainant being informed that she was the subject of an informal
EEO complaint;

(3) On June 16, 2017, Complainant informed her former supervisor, the Agency’s
Director of Medicine that a named Agency official, TM, treats Complainant’s co-
worker TH more favorably by communicating and socializing with TH because
they are both black; and

(4) On April 17 and 19, 2018, Complainant’s supervisor informed Complainant
that pending guidance from the Agency’s Civilian Personnel Advisory Center,
disciplinary action against Complainant was forthcoming.

In its July 23, 2018, final decision, the Agency dismissed claims 1 - 3 for failure to state a claim
in accordance with EEOC Regulation 29 C.F.R. §1614.107(a)(1). The Agency determined that
Complainant failed to demonstrate that suffered any harm with respect to the terms, conditions
and privileges of her employment. Alternatively, the Agency found that Complainant did not
timely contact an EEO Counselor regarding claims 1, 2, and 3 Consequently, the Agency
dismissed claims 1, 2 and 3 as untimely in accordance with EEOC Regulation 29 C.F.R.
1614.107(a)(2).

The Agency’s also found that claim 4 alleged that a proposal to take a personnel action was
discriminatory. The Agency dismissed claim 4 in accordance with EEOC Regulation 29 C.F.R.
§1614.107(a)(5) finding that Complainant had not been subjected to any discipline.

On appeal, Complainant contends that the Agency advised Complainant that discipline against
her was pending, solely for the purpose of harassing Complainant. Complainant alleges,
therefore, that the Agency’s acts of reprisal against her created a hostile work environment.

ANALYSIS AND FINDINGS

The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in relevant part, that the agency
shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time
limits contained in 29 C.F.R. § 1614.105.

2 We note here that for ease of reference, the claim numbers have been numbered 1-4.

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Under 29 C.F.R. § 1614.105(a)(1), an aggrieved person must initiate contact with an EEO
Counselor within 45 days of the date of the matter alleged to be discriminatory, the effective date
of an alleged discriminatory personnel action, or the date that the aggrieved person knew or
reasonably should have known of the discriminatory event or personnel action. EEOC
Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be
brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45)
days of the date of the matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action.

Complainant failed to contact an EEO Counselor within 45 days of the events described in
claims 1 - 3. The record indicates that the most recent alleged discriminatory event identified in
these three claims occurred on April 16, 2018. However, Complainant contacted an EEO
Counselor on June 4, 2018 which was beyond the applicable time limitation as established by
EEOC Regulations relating to claims 1 - 3.

Moreover, in claim 4 Complainant alleges that a proposed action is discriminatory, and the claim
was properly dismissed pursuant to EEOC Regulation 29 C.F.R. §1614.107(a)(5). Even if this
proposed action were considered together with the remaining claims, we determine that the
Agency’s alleged conduct was not so severe and pervasive that it altered the conditions of
Complainant’s employment and cannot be therefore construed as a viable harassment claim. See
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).

CONCLUSION

The Agency's final decision to dismiss the formal complaint AFFIRMED for the reasons set
forth herein.

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).
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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 (S0610)
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. 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 (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.
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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

November 20, 2018
Date