Marcelina Q.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Aug 9, 2018

0120181762 (E.E.O.C. Aug. 9, 2018)

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

Marcelina Q.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120181762

Agency No. ARMEADE18FEB000360

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency’s decision dated March 29, 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. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Upon review, the Commission finds that
Complainant’s complaint was improperly dismissed 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 Relocation Program
Manager, GS-0101-11, at the Army Community Service (ACS) facility in Fort Meade, Maryland.
On March 14, 2018, Complainant filed a formal complaint alleging that the Agency subjected her
to discrimination on the bases of race (African-American), sex (female), age (54), and reprisal for
prior protected EEO activity when:

1. On or about January 17, 2018, Complainant was assaulted by a coworker and following
the assault, Complainant’s Director told her that she did not have the time to look into the
incident because she was in a meeting. Complainant alleges that the Director’s actions
resulted in her not having a safe environment.

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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2. On or about January 30, 2018, Complainant was assigned a temporary detail at Gaffney
Fitness Center, a facility outside of ACS’s main office.

On March 29, 2018, the Agency issued a final decision dismissing the complaint pursuant to 29
C.F.R. § 1614.107(a)(1), for failure to state a claim. The Agency stated there was no persuasive
evidence in the record that Complainant was subjected to any adverse employment action or denied
any entitlement in relation to a term, condition, or privilege of employment as a result of the
incident she raised in her complaint. The Agency added that because the Agency’s Department of
Emergency Services (DES) investigated the assault and determined that an assault did not occur,
a remedy did not exist under Title VII.

ANALYSIS AND FINDINGS

The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency
shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any
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). Complainant has shown an injury or harm to
a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep’t of
the Air Force, EEOC Request No. 05931049 (April 21, 1994).

The only questions for an agency to consider in determining whether a complaint states a claim
are: (1) whether complainant is an aggrieved employee; and (2) whether complainant raises
employment discrimination on a basis covered by EEO statutes. If these questions are answered
in the affirmative, an agency must accept the complaint for processing regardless of its judgment
of the merits. See Odoski v. Dep’t of Energy, EEOC Appeal No. 01901496 (April 16, 1990). In
this instance, Complainant is alleging that she experienced harassment and involuntary
reassignment based on race, sex, age, and reprisal for prior protected EEO activity, which are
actionable claims.

Claim 1: Harassment

In order to state a claim of hostile work environment, the complainant must allege facts which, if
proven true, would indicate that the complainant may have been subjected to harassment that was
sufficiently pervasive to alter the conditions of employment. See Cobb v. Dep’t of the Treasury,
EEOC Request No. 05970077 (Mar. 13, 1997).

Complainant alleged that she was the victim of an assault, but management “refused to
communicate with [her] in addressing the concerns of a coworker physically touching [her] in an
aggressive manner and violating her personal space” due to prior EEO activity. The complaint
further alleges a hostile work environment, which resulted in Complainant being escorted from the
premises in handcuffs, humiliation, and her reassignment, based on her race, sex, age, and prior
protected activity.
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We find that Complainant’s allegations of assault are sufficiently severe to state a claim of
harassment. See Nichols v. U.S. Postal Serv., EEOC Appeal No. 0120092008 (June 25, 2009)
(finding that physical assault was sufficient to support a claim of a hostile work environment).

Claim 2: Involuntary Reassignment

The Commission has held that claims that allege a change in assignment of duties sufficiently state
an injury or harm to a term, condition, or privilege of employment for which a remedy can be
provided. See Pachecho v. U.S. Postal Serv., EEOC Appeal No. 0120093186 (Jan. 26, 2010);
Banner v. Dep’t of Veteran Affairs, EEOC Appeal No. 0120093470 (Nov. 12, 2009).

In an email dated January 22, 2018, Complainant requested reassignment due to “feeling that [she
was] in a hostile work environment.” Complainant alleges that she requested an assignment within
an ACS facility, but instead she received a position outside of ACS, which resulted in less
authority, support, and career advancement. The record indicates Complainant was reassigned to
Gaffney Fitness Center in January 2018, as an Operations Clerk, rather than as a Relocation
Program Manager. By alleging involuntary reassignment, Complainant has shown an injury to a
term, condition, or privilege of employment for which there is a remedy. Specifically, the
Commission finds that, under the facts of this case, the reassignment, which included a change in
assignments and duties, rendered Complainant aggrieved and therefore this complaint states a
claim.

CONCLUSION

Accordingly, the Agency’s final decision dismissing Complainant’s complaint is REVERSED and
the matter is REMANDED for further processing as set forth in the Order below.

ORDER (E0618)

The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108.
The Agency shall acknowledge to the 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 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.

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As provided in the statement entitled “Implementation of the Commission's Decision,” the Agency
must send to the Compliance Officer: 1) a copy of the Agency's letter of acknowledgment to
Complainant, 2) a copy of the Agency's notice that transmits the investigative file and notice of
rights, and 3) either a copy of the complainant's request for a hearing, a copy of complainant's
request for a FAD, or a statement from the agency that it did not receive a response from
complainant by the end of the election period.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
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 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 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.
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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
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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

August 9, 2018
Date