Marine V.,1 Complainant,v.Heather A. Wilson, Secretary, Department of the Air Force (National Guard Bureau), Agency.

Equal Employment Opportunity Commission

Apr 3, 2019

0120181061 (E.E.O.C. Apr. 3, 2019)

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

Marine V.,1
Complainant,

v.

Heather A. Wilson,
Secretary,
Department of the Air Force
(National Guard Bureau),
Agency.

Appeal No. 0120181061

Agency No. T2016030NCFRHO

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 12, 2018, final
decision concerning her 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. For the following reasons, the Commission VACATES the Agency’s final
decision and REMANDS the complaint to the Agency for further processing.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was a dual-status technician at the
145th Airlift Wing, Force Support Squadron (145 FSS) of the North Carolina Air National Guard
in Charlotte, North Carolina. In her technician role, Complainant worked as a Base Services
Specialist, GS-09. Complainant also worked in another section of 145 FSS in her military capacity.

On September 23, 2016, Complainant filed an EEO complaint pursuant to NGR 690-600 (National
Guard Technician Discrimination Complaint System) alleging that the Agency discriminated

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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against her on the bases of race (African-American) and reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964 when:2

1. On May 18, 2016, she received a negative counseling statement;
2. On June 23, 2016, she was denied compensatory time;
3. On June 23, 2016, she was informed that she would be given a “write up” regarding
the denial of compensatory time;
4. On July 1, 2016, she was called into a meeting by management during which she was
presented with a termination letter, effective July 23, 2016;
5. On July 5, 2016, following the receipt of the technician termination notice, she entered
a management official’s office to retrieve an invoice and another management official
entered the office and stood behind her to make her feel uncomfortable. She was asked
to hand over her keys and denied access to her office; and
6. Before her last day on July 23, 2016, she believed that management manipulated her
time sheet to create a discrepancy in her annual leave.

The Agency dismissed Complainant’s claims on February 6, 2017, asserting that the underlying
issues in the case involved purely military matters that were inappropriate for NGR 690-600. The
Agency remanded Complainant’s case to the North Carolina Air National Guard for investigation
under NGR 600-22 (National Guard Military Discrimination Complaint System).

Complainant appealed the Agency’s dismissal of her claims to the Commission. While her appeal
with the Commission was pending, the North Carolina Air National Guard conducted a
Commander-Directed Investigation into Complainant’s allegations and issued an investigative
report on June 27, 2017, finding Complainant’s claims to be unsubstantiated.

On August 11, 2017, in EEOC Appeal No. 0120171333, the Commission reversed the Agency’s
February 6, 2017 decision dismissing the complaint and the Commission remanded Complainant’s
complaint for further processing in accordance with 29 C.F.R. § 1614.108. The Commission also
directed the Agency to provide Complainant with a copy of the investigative file and notify her of
any rights that she may have within 150 calendar days of the issuance of the decision.

The Agency subsequently issued a final decision on January 12, 2018. The decision concluded that
Complainant failed to prove that the Agency subjected her to discrimination as alleged. This
appeal followed.

2 As indicated in our August 11, 2017 decision in EEOC Appeal No. 0120171333, Complainant’s
military promotion claim was not part of the complaint, had been settled, and is no longer at issue
in this complaint. The remaining issues concern Complainant’s allegations of ongoing harassment.
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ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

After careful review of the evidence of record, we find that the Agency failed to fully comply with
our August 11, 2017 remand order to provide Complainant with a copy of the investigative file
and inform her of right to request a hearing before an EEOC Administrative Judge. On appeal,
Complainant alleged that she did not receive a copy of the investigative file. The Agency,
however, did not refute or even address this contention in any of its appellate filings. There is also
no indication in the record that the Agency informed Complainant of her right to a hearing or a
final decision. For these reasons, we vacate the final decision and remand Complainant’s case for
further processing in accordance with the ORDER herein.

ORDER

Within 30 days of the issuance of this decision, the Agency shall send Complainant a copy of the
Report of Investigation along with Notice of Right to Request a Hearing or an immediate final
decision consistent with our regulations in 29 C.F.R. § 1614.108. If Complainant requests a final
decision, a decision will be issued no later than 60 days from the date of the request. The Agency
will ensure that Complainant receives adequate information regarding the manner in which to
request a hearing. The Agency shall submit a report of compliance documenting its completion of
these actions, as indicated herein.

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).
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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.
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).

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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’s signature
Carlton M. Hadden, Director
Office of Federal Operations

April 3, 2019
Date