0120182217
09-20-2018
Julie D.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Julie D.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120182217
Agency No. ARMEPCOM18MAR00874
DECISION
Complainant filed this appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated May 15, 2018, dismissing her 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 Support Technician, GS-6, at the Agency's Military Entry Processing Station (MEPS) in Louisville, Kentucky.
On April 6, 2018, Complainant filed a formal complaint alleging that she had been subjected to unlawful retaliation for engaging in prior protected activity, as well as harassment on the basis of religion (Pentecostal), by the facility commander.
In a final decision dated May 15, 2018, the Agency dismissed Complainant's complaint for failure to state a claim under 29 C.F.R. � 1614.107(a)(1). In doing so, the Agency characterized the complaint of consisting solely of the following issue:
On or about January 31, 2018, the facility commander mocked and degraded Complainant's belief in her God, and stifled her First Amendment rights to free speech and to peaceably assemble.
The Agency determined that the alleged commander's words were not religious discrimination. The Agency also dismissed Complainant's reprisal allegation, reasoning she had not engaged in prior EEO-protected activity.
The instant appeal followed.
ANALYSIS AND FINDINGS
Here, we find that a fair reading of the complaint, in conjunction with the related EEO counseling report, shows that the Agency erred in limiting the definition of the claim raised by Complainant to the single incident regarding a statement the commander allegedly made about Complainant's religion on January 31, 2018.
The EEO counseling report contains a typed statement from Complainant, dated March 9, 2018. In that statement, Complainant asserted that she had been a witness on behalf of her immediate supervisor in the supervisor's military "EO" complaint of discrimination against the facility commander. Complainant alleged that, in retaliation for supporting her supervisor's discrimination claim as a witness, the commander began harassing her on an ongoing basis, including: attempting to give her an unwarranted unfavorable performance evaluation for the year ending on October 2017; sending her an accusatory email holding her responsible for mistakes on personnel documents she had not worked on; wrongly accusing her of making disparaging remarks about him to other staff; and during the January 31, 2018 incident, yelling at her in an angry manner, calling her a hypocrite and "toxic" to the work environment, and mocking her religious beliefs by stating that she should not interrupt him just like he did not interrupt her when she was talking to people at work about her God. In addition, Complainant alleged that the commander attempted to intimidate her by asking her "whose side are you on," and stating that she was on her supervisor's "side" against him. In sum, we find that Complainant has alleged a claim of ongoing harassment by the commander in retaliation for testifying in her supervisor's complaint of discrimination. As part of this harassment, Complainant alleged the commander made offensive comments about her religion.
As so defined, we conclude that the complaint states a viable claim of retaliatory harassment. The anti-retaliation provisions of the employment discrimination statutes seek to prevent an employer from interfering with an employee's efforts to secure or advance enforcement of the statutes' basic guarantees, and are not limited to actions affecting employment terms and conditions. Burlington Northern & Santa Fe Railroad. Co. v. White, 548 U. S. 53, 126 S. Ct. 2405 (2006). To state a viable claim of retaliation, a complainant must allege that: 1) she was subjected to an action which a reasonable employee would have found materially adverse, and 2) the action could dissuade a reasonable employee from making or supporting a charge of discrimination. Id. See also EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (August 25, 2016). Complainant has done so here. We are unpersuaded by the Agency's argument that Complainant cannot state a claim of unlawful retaliation because she had not engaged in prior protected activity. It is undisputed that Complainant was a witness on behalf of her supervisor in her complaint of discrimination (albeit in the military rather than civilian complaint process) against the commander. This constitutes prior protected activity within the meaning of Title VII. We note Complainant has also alleged that the commander directly linked his asserted anger at her by asking her "whose side are you on?" in reference to the supervisor's complaint. These allegations are sufficient to state a claim of retaliation that requires investigation and further processing.
CONCLUSION
We REVERSE the Agency's final decision dismissing the formal complaint for the reasons discussed above.
ORDER (E1016)
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 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 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 Complainant. If the Agency does not comply with the Commission's order, Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). 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, 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 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 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, Director
Office of Federal Operations
__
September 20, 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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