Leticia W.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense (Department of Defense Education Activity), Agency.

Equal Employment Opportunity Commission

Dec 18, 2019

2019002950 (E.E.O.C. Dec. 18, 2019)

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

Leticia W.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.

Appeal No. 2019002950

Hearing No. 430-2018-00047X

Agency No. DDFY14029

DECISION

Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March
29, 2019 Final Order concerning an equal employment opportunity (“EEO”) complaint alleging
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., and the Age Discrimination in Employment Act of 1967
(“ADEA”), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
an Assistant Principal at Gordon Elementary School (“GES”) in Fort Bragg, North Carolina,
having just transferred from Butner Primary School (“BPS”).

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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On February 5, 2014, Complainant filed an EEO complaint alleging discrimination by the
Agency on the bases of race (African-American), sex (female), color (brown), age (52), and
reprisal (prior protected EEO activity)2 when:

1. On November 22, 2013, Complainant’s former supervisor (“S1”), who was the
Principal of BPS, told a specialist at School Support Services (“SSA”) that
Complainant was a “person of interest” to be questioned regarding missing
government property (computer carrying case and power cord);

2. On November 22, 2013, SSA called Complainant to inform her about S1's report
to the District Superintendent's Office and proceeded to interrogate her about the
missing computer items from BPS;

3. On November 22, 2013, S1 directed SSA to call Complainant to interrogate her
about the missing computer items from BPS;

4. On November 22, 2013, S1 falsely reported Complainant to the Education
Operations Chief (“EOC,” Caucasian, white, male, 60) as a person of interest to
be interrogated as part of an investigation regarding missing computer inventory
from BPS; and

5. On November 19, 2013, S1 falsely identified Complainant as a person of interest
to be interrogated due to her alleged involvement in missing computer inventory
from BPS.

The record reflects a complex procedural history following the Agency’s investigation into
Complainant’s claims.

After its investigation into the complaint, the Agency sent Complainant a copy of the report of
investigation (“ROI”) and notice of her right to request a hearing before an Equal Employment
Opportunity Commission (“EEOC” or “Commission”) Administrative Judge (“AJ”) or for the
Agency to issue a Final Agency Decision (“FAD”) on the matter. Complainant never received
the ROI and Notice. However, on August 22, 2014, she submitted a Hearing Request to the
proper EEOC district office. However, Complainant did not send a copy to the Agency.

On September 5, 2014, the assigned AJ ordered the Agency to produce the ROI and Investigative
File (“IF”). The Agency complied on September 12, 2014, however, it also issued a FAD and
submitted it to the AJ the same day. On October 20, 2014, the Agency filed a Motion to
Dismiss, or, in the alternative, a Motion for Summary Judgment.

2 EEOC Appeal No. 0720150013 (Oct. 24, 2018) affirming in part, vacating in part (Hearing
Nos.430201200352X & 430201300290X) (AJ decision without a hearing finding retaliation by
the Agency when it “essentially forced [Complainant] to transfer”).
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On November 6, 2014, the AJ dismissed Complainant’s Hearing Request, reasoning that it was
undisputed that Complainant did not notify the Agency when she submitted the request, and, as
the Agency had issued a FAD, appellate jurisdiction lay with the Commission’s Office of
Federal Operations (“OFO”).

Complainant, seeking a hearing, appealed to OFO, regarding whether the Agency’s issuance of a
FAD after it was notified that Complainant had requested a hearing before an AJ was
“appropriate.” OFO reversed the AJ’s dismissal on August 4, 2016 (EEOC Appeal No.
0120150246), finding that the Agency was aware Complainant requested a hearing when it
issued a FAD on September 12, 2014, given that the AJ ordered it to provide the ROI on
September 5, 2014. Thus, the AJ erred in determining that the Agency had jurisdiction to issue a
FAD on the matter where Complainant already requested a hearing.

OFO’s August 4, 2016 decision also noted that “Complainant’s complaint fails to state a claim
upon which relief can be granted,” pursuant to 29 C.F.R. § 1614.107(a)(1). However, the
Commission remanded the matter for a hearing before an AJ, because the scope of the appeal
was limited to whether or not the Agency’s issuance of a FAD was appropriate. As the FAD was
improperly issued, it could not be the basis for an appellate decision, and the matter would be
decided by an AJ, per Complainant’s request.

The assigned AJ for Complainant’s remanded complaint cited and agreed with OFO’s
determination in EEOC Appeal No. 0120150246, that the complaint failed to state a claim.
Alternately, the AJ dismissed the matter on the merits.

The Agency issued its Final Order adopting the AJ’s finding that Complainant failed to prove
discrimination as alleged. The instant appeal followed.

ANALYSIS AND FINDINGS

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 or
disabling condition. 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 (Apr. 21, 1994). If complainant cannot
establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim.
29 C.F.R. § 1614.107(a)(1).

In determining whether a harassment complaint states a claim, the Commission has repeatedly
examined whether a complainant's harassment claims, when considered together and assumed to
be true, were sufficient to state a hostile or abusive work environment claim. As such, a claim of
harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the
conditions of the complainant’s employment.
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See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). However, we have repeatedly found
that allegations of a few isolated incidents of alleged harassment usually are not sufficient to
state a harassment claim. See Phillips v. Dep’t of Veterans Affairs, EEOC Request No.
05960030 (July 12, 1996); Banks v. Dep’t of Health and Human Servs., EEOC Request No.
05940481 (Feb. 16, 1995).

Similarly, as Complainant is raising a reprisal claim, 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. Lindsey v. United States Postal Serv., EEOC
Request No. 05980410 (Nov. 4, 1999). Instead, claims based on statutory retaliation clauses are
reviewed “with a broad view of coverage. Under Commission policy, a complainant is protected
from any retaliatory discrimination that is reasonably likely to deter… complainant or others
from engaging in protected activity.” Maclin v. United States Postal Serv., EEOC Appeal No.
0120070788 (Mar. 29, 2007).

During the relevant time frame for the instant complaint, EEOC Appeal No. 0720150013 (Oct.
24, 2018) was pending a decision. The events for that prior complaint predate the instant
complaint, and the Commission ultimately found in Complainant’s favor that the Agency
engaged in reprisal for her prior protected EEO activity.

In the instant case, we find that the alleged actions, which were took place over two days,
concerning a specific matter that was quickly resolved, represent an isolated incident, and lack
the necessary severity to rise to the level of actionable harassment. Moreover, we find the alleged
harassing acts unlikely to deter Complainant or others from either personally engaging in the
EEO process or to keep management from carrying out its obligations to insure a continuing
affirmative application and vigorous enforcement of the policy of equal employment
opportunity. Even taking Complainant’s prior EEO activity into consideration, the allegations
simply do not rise to the necessary level of severity and pervasiveness to state a claim.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s Final Order adopting the AJ’s finding
that Complainant’s complaint fails to state a claim pursuant to 29 C.F.R. §§ 1614.107(a)(1).

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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 (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.
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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

December 18, 2019
Date