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

Equal Employment Opportunity Commission

Dec 26, 2019

2019005195 (E.E.O.C. Dec. 26, 2019)

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

Peter L.,1
Complainant,

v.

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

Appeal No. 2019005195

Hearing No. 420-2019-00101X

Agency No. DD-FY17-102

DECISION

On June 25, 2019, 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
June 3, 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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the appeal in
accordance with 29 C.F.R. § 1614.405.

BACKGROUND

During the relevant time, Complainant worked as a Physical Education Teacher at the Agency’s
Ft. Rucker Primary School for the Southeast District in Ft. Rucker, Alabama.

Believing that he was subjected to unlawful harassment and discrimination, Complainant
contacted an EEO Counselor on August 1, 2017. Informal efforts to resolve Complainant’s
concerns were unsuccessful.

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 November 13, 2017, he filed a formal EEO complaint based on race (African-American),
disability (Obsessive Compulsive Disorder), and in reprisal for prior protected EEO activity.

The Agency framed the claims as follows:

1. From May 2016 to present, management officials and various co-workers
subjected Complainant to a hostile work environment and disparate
treatment by engaging in a campaign of racially belittling comments,
including but not limited to the following statements:

a. “I thought all blacks had a line down their hand.”

b. “Oh, the terrorist is subbing today (referring to another African-
American male substitute teacher who had a beard).”

c. “You look like a terrorist (referring to Complainant after he grew a
beard).”

d. “You speak well for a black person.”

2. On or about January 2017 to present, the Principal of Ft. Rucker PS
[hereinafter “Principal”], and or the Assistant Superintendent, Southeast
District, DODEA-Americas [hereinafter “Asst. Superintendent”] subjected
Complainant to harassment. The following incidents were provided in
support of the alleged harassment:

a. On an unspecified dated, Complainant was not provided with keys or a
computer while working at the Elementary School.

b. On an unspecified date, Complainant was not included in a school
award ceremony.

c. On an unspecified date, Complainant received no help for Field Day,
after having been promised additional faculty support.

d. On an unspecified date, Complainant was not given a formal schedule
change that all other teachers received, when he was reassigned to the
Elementary School, and instead was merely given a “sticky note,” and
no advance notice.

e. On an unspecified date, Complainant was told by Principal that he
should not have gone into teaching if he had such mental health
difficulties and then she said he was “weird.”

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f. On an unspecified date, Principal informed others of Complainant’s
mental health issues, resulting in several comments to him by other
teachers, such as, “don’t touch him, he doesn’t like to be touched,” or
“don’t get to close to me or I’ll touch you,” and other similar
comments intended to harass Complainant about his mental health
issues.

g. On an unspecified dated, Principal, in response to hearing that
Complainant had OCD, said she wanted to know more about him,
which was said in front of several other faculty members.

h. On or about late May 2017, Principal told Complainant that she would
have “RIF’d [Reduction in Force/Termination]” him if she’d known he
wanted a transfer, and that the only reason she kept him was she
needed him to cover recess duty.

i. On or about July 28, 2017, Principal and Asst Superintendent verbally
harassed Complainant about him moving his desk from an office to the
gymnasium.

j. On or about July 29, 2017, Principal and Asst. Superintendent allowed
Complainant’s white co-worker to move his desk into the gymnasium,
after denying the same request to Complainant the previous day.

3. On or about July 28, 2017, Principal and Asst Superintendent denied
Complainant’s reasonable accommodation request without just cause.2

4. On or about October 19, 2017, Principal issued Complainant a Letter of
Reprimand for his failure to follow instructions.

After an investigation, the Agency provided Complainant with a copy of the report of
investigation (ROI) and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). By letter dated April 26, 2018,
Complainant, through her attorney, requested a hearing. Enclosed with the letter was a “Motion
to Amend the Complaint.” Complainant sought to include three additional examples of
discrimination, namely on or about January 12, 2018, Principal refused to endorse Complainant’s
application for Teacher of the Year award; on or about March 16, 2018, Principal proposed
Complainant’s suspension for three days; on or about April 11, 2018, Asst. Superintendent
suspended Complainant for three days.

2 This claim only raises the basis of disability.
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On June 11, 2018, Complainant’s counsel submitted to the AJ a second request to amend. These
additional claims concerned events from May 2018, including the following matters: a retaliatory
investigation against Complainant; a letter of complaint against Complainant, signed by thirty-
five of Complainant’s co-workers; an inappropriate interview, conducted in a rude and harassing
manner without the opportunity to be represented by counsel; removal from the school premises;
and the denial of regular entry to the base at Fort Rucker.

The following year, in her April 3, 2019 “Order of Acknowledgment and Rescheduling of Initial
Teleconference”, the AJ instructed the parties to be prepared to discuss several matters, including
possible dismissal grounds, and provide “any documents pertaining to any of Complainant’s
grievances involving matters that arose from May 2016 through October 2017, and any decisions
on those matters.” According to the AJ, Complainant responded by stating he was unaware of
any union grievance filed during that time period. The Agency countered that Complainant filed
a grievance on August 15, 2017, through the union representative for the teachers’ union.

Following the initial teleconference, on April 26, 2019, the AJ issued a decision dismissing the
formal complaint. The Agency reasoned that grievance documents contained in the ROI showed
that Complainant filed a grievance on August 15, 2017, alleging discrimination based on race
and disability. Specifically, the AJ noted that in the grievance Complainant alleged the
following: “bullying by his supervisors…; intimidation by his supervisors; condescending and
disrespectful treatment by his supervisor, [in] not being allowed to work out the situation among
co-workers for himself; same parameters not being applied to others; treatment by superiors that
was demeaning, belittling, humiliating, and attacking through word choice and proximity.”
Thereafter, on November 13, 2017, Complainant filed his EEO complaint alleging, as stated by
the AJ, “belittling comments and harassment from his supervisors and coworkers.” In the AJ’s
view, the grievance matters “mirror” the claims raised in the EEO complaint. The AJ therefore
concluded that Complainant elected the grievance procedure and the formal complaint must be
dismissed pursuant to 29 C.F.R. 1614.107(a)(4).

On June 3, 2019, the Agency issued a final order fully implementing the AJ’s decision to dismiss
the complaint. Complainant filed the instant appeal.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.301(a) states that when a person is employed by an agency
subject to 5 U.S.C. § 7121(d) and is covered by a collective bargaining agreement that permits
claims of discrimination to be raised in a negotiated grievance procedure, a person wishing to file
a complaint or grievance on a matter of alleged employment discrimination must elect to raise
the matter under either part 1614 or the negotiated grievance procedure, but not both. An
aggrieved employee who files a grievance with an agency whose negotiated agreement permits
the acceptance of grievances which allege discrimination may not thereafter file a complaint on
the same matter under this part 1614 irrespective of whether the agency has informed the
individual of the need to elect or whether the grievance has raised an issue of discrimination.
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In the instant case, the foundation for the AJ’s dismissal are “grievance documents” contained in
the ROI. We first turn to an email dated August 15, 2017, from Complainant’s Union
Representative to Principal and Asst. Superintendent. Therein, the union representative provided
the following explanation: “[Complainant] has sought representation through the FREA Union in
regard to a grievance he wants to file against both [Principal and Asst. Superintendent] in regard
to a situation that arose on or around July 27, 2017 pertaining to shared work space at the
Primary School and a desk.”3 The email proceeds to explain that Complainant, “has decided to
forgo the completed step 1 in the grievance process of requesting a meeting, stating a complaint,
and waiting for a response within the MOA timeframe and wishes to file a formal complaint . . .”
The reasons for the grievance, as described by the AJ in her decision, are listed. A narrative by
Complainant, cited in the email, describes events in late July 2017 where Complainant tried to
relocate his desk in order to avoid sharing a small space with a colleague. Complainant described
his efforts as based upon his disability.

The next day, Principal sent an email “in response to the Grievance filed on behalf of
[Complainant].” Citing the negotiated grievance procedure, which requires that certain matters
may be raised in the grievance process or an applicable statutory procedure, but not both,
Principal stated: “It has been brought to my attention that prior to filing the grievance,
[Complainant] chose to raise this issue under the EEO process. As such, he is precluded from
raising this issue using the negotiated grievance procedure.” She closes her correspondence by
noting: “I trust that the EEO process will resolve the issue to [Complainant’s] satisfaction.”

It is based upon these above-referenced documents alone that the AJ dismissed the instant
complaint. During the April 19, 2019 initial teleconference, the AJ asked Complainant why he
had stated there was no grievance. Complainant’s counsel stated that he did not see any
grievance documents in the Report of Investigation. We can understand why this observation
was made. The Agency was arguing for the dismissal of the EEO complaint based upon the
asserted grievance, when two years previously it instructed Complainant that he could not use
the grievance process due to the instant EEO complaint. While the August 15, 2017 email
describes what appears to be the same events presented in claim (3), it is unclear that the
document constitutes a formal grievance and election of the grievance process. Moreover, the
Agency’s August 16, 2017 response foreclosed the grievance even before it was processed.
Consequently, we find that neither claim (3), nor the remainder of the EEO complaint was
properly dismissed pursuant to 29 C.F.R. 1614.107(a)(4).

3 The email proceeds to describe a meeting where Complainant submitted reasonable
accommodation forms, noting that at that time Complainant and his union representative were
unaware that they were doing anything more than providing the forms (i.e. “no specific request
for an answer to a complaint was made to [Principal] and no time frame for a response from her
allotted.”
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Finally, as noted above, while the matter was pending before the AJ, Complainant sought to
amend his complaint on two occasions. These motions, filed in April and June 2018, were not
addressed by the AJ. EEOC regulations provide that, after requesting a hearing a complainant
may file a motion with the administrative judge to amend a complaint to include claims like or
related to those in the complaint. 29 C.F.R. § 1614.106(d). Further, if the AJ concludes that the
new claims are not like or related to any claims pending in the complaint, he or she should deny
the motion and order the agency to commence processing the new claims as a separate EEO
complaint. See King v. Dep't of Veterans Affairs, EEOC Request No. 0520120116 (May 30,
2012). The order should instruct the Agency that the filing date of the motion to amend the
complaint is the date to be used to determine if initial EEO Counselor contact was timely. See id.
Therefore, on remand, the continued processing of the instant complaint shall also include
consideration by the AJ on Complainant’s motions to amend.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we REVERSE the
dismissal and REMAND the complaint for a hearing in accordance with this decision and the
Order below.

ORDER

The Agency shall submit to the Hearings Unit of the EEOC's Birmingham District Office a
renewed request for a hearing on behalf of Complainant, as well as a copy of the complaint file
and this appellate decision, within fifteen (15) calendar days of the date this decision is issued.
The Agency shall provide written notification to the Compliance Officer at the address set forth
below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the AJ shall
issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the agency shall
issue a final action in accordance with 29 C.F.R. § 1614.110.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.
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.

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

December 26, 2019
Date