[Redacted], Breanna S, 1 Complainant,v.John P. Roth, Acting Secretary, Department of the Air Force (National Guard Bureau), Agency.

Equal Employment Opportunity Commission

Jul 7, 2021

Appeal No. 2021001866 (E.E.O.C. Jul. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Breanna S,1 Complainant, v. John P. Roth, Acting Secretary, Department of the Air Force (National Guard Bureau), Agency. Appeal No. 2021001866 Hearing No. 530202000183X Agency No. WV017217 DECISION Complainant filed a timely appeal,2 pursuant to 29 C.F.R. § 1614.403, from the Agency’s December 4, 2020 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. At the time of events giving rise to this complaint, Complainant, a dual-status technician (“DST”), worked as a Budget Officer, GS-12/2nd Lieutenant, within the 167th Airlift Wing, at the West Virginia Air National Guard facility in Martinsburg, West Virginia. Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination and harassment/hostile work environment on the basis of sex (female) when: (a) She was sexually harassed by the Responding Management Official (“RMO”), a Major with supervisory authority over her, when: 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. 2 While her appeal was timely, Complainant’s support brief has not been considered in this decision, as it was submitted a month past the filing deadline following two extensions. 2021001866 2 1. In May 2015, RMO was moved to Finance as the Comptroller. 2. In summer 2015, RMO stopped her when she was standing in his office one day and said, “you are so beautiful.” 3. Between October and December 2015, while at Officer Training, RMO sent a couple of texts to her, stating that he needed and wanted her as his Budget Officer. It made Complainant uncomfortable and she believed this to be sexual harassment. 4. When Complainant returned to the office, RMO told her several more times “you’re so beautiful.” 5. When Complainant returned to the office after the birth of her son, RMO would still occasionally tell her “you’re so beautiful.” 6. During a briefing at a Leadership Conference in April 11-13, 2017 at Camp Dawson RMO turned to Complainant and asked, “What would you do if I grabbed your ass?” 7. On May 9, 2017, RMO did not speak to Complainant most of the morning, started bullying her, yelling at her, and accused her of telling a “story,” (b) On June 8, 2017, RMO removed her from greenbelt training to “punish/harass” her. Complainant believes this was him bullying and discriminating against her and withholding a training opportunity. (c) In 2004, she was sexually harassed by RMO after returning from Tech School when: 1. RMO made comments in front of other guys in the shop that were humiliating, such as "You're so hot," "I had a dream about you last night," "what color are your underwear today," "you smell so good," and "how do you shave it." 2. RMO would often come up behind her and play with her hair, massage her shoulders, and sniff her. 3. One afternoon, RMO grabbed her butt and said, "God I've wanted to do that for so long!” causing her to feel incredibly uncomfortable and violated, and Complainant believes it was sexual assault. 4. RMO yelled at her, bullied her, and, as RMO referred to it, “called out” Complainant in front of the entire shop if she asked to reschedule a drill, asked for AT days, or asked to go on a TOY/Deployment. 2021001866 3 The Agency dismissed Claims (a)(3) and (c)(1)-(4), citing 29 USC §1614.103(b)(l), which provides that Title VII does not apply to uniformed members of the military services, including members performing duties or trainings in a military status.3 The Agency remanded these claims for investigation under the Military Equal Opportunity (“MEO”) complaint process. After investigating Complainant’s remaining claims, the Agency provided her with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (“EEOC” or “the Commission”) Administrative Judge (“AJ”). The complaint was assigned to an AJ. However, the Agency submitted a Motion to Dismiss on the grounds that it already addressed the matter in a May 23, 2019 Final Agency Decision (“FAD”), which concluded that Complainant failed to prove discrimination as alleged. On October 12, 2020, Complainant submitted a Motion for Review and Inclusion, essentially requesting that the AJ reinstate her complaint, including Claims (a)(3) and (c)(1)-(4). The Agency responded with an Amended Motion to Dismiss and Response to Motion for Review and Inclusion. The AJ requested that the parties submit evidence to determine whether a FAD was properly issued, including whether Complainant was notified of her right to request a hearing, and whether she elected to receive a FAD. Both parties timely responded. In accordance with the AJ’s request, the Agency produced email evidence confirming that Complainant was notified of her right to a hearing and formally requested a FAD on April 28, 2018. The record further reflected that an explanation of appeal rights accompanying the FAD “properly advised Complainant that she had thirty (30) calendar days after receipt of the FAD to file an appeal with the Commission.” Although a certified-mail return-receipt card established that Complainant received the FAD on June 17, 2019, she did not file an appeal until August 7, 2019. Complainant explains in the record that she appealed because, among other things, she believed that the FAD had been improperly issued, and because she sought a hearing before an AJ to resolve her complaint, including Claims (a)(3) and (c)(1)-(4). The record contains a copy of the Commission’s August 27, 2020 decision on Complainant’s appeal, which, noting the lack of explanation for the delay in filing, dismissed the matter as untimely without reviewing the merits of her complaint.4 3 While our August 27, 2020 Decision provides further discussion on this matter, we reiterate that because it is based on other grounds, the Commission’s August 27, 2020 Decision does not reach a conclusion as to the extent of EEOC jurisdiction over Complainant’s complaint given her status as a DST, in accordance with Title VII §717, 29 U.S.C. §1614.103(b)(l), and the National Defense Authorization Act for Fiscal Year 2017 (32 U.S.C. § 709(f) (2018)), nor did it reach a conclusion as to whether the Agency erred in its determination that the allegations in Claims (a)(3) and (c)(1)-(4) occurred while Complainant was in a military pay status, “a decision the Agency pre-emptively reached without benefit of an investigation.” 4 Joya Y. v. Dep’t of the Air Force (Nat’l Guard), EEOC Appeal No. 2019005178 (Aug. 27, 2020). In dismissing Complainant’s August 7, 2019 appeal as untimely, the Commission 2021001866 4 Once her appeal was dismissed, Complainant’s only recourse within the EEO process was to file a Request for Reconsideration with the Commission within thirty (30) days of receipt of the appellate decision. The Commission’s August 27, 2020 Decision included instructions for Complainant to request reconsideration, but there is no indication in the record that she did so. On November 13, 2020, the AJ issued a decision dismissing Complainant’s request for further adjudication of her complaint. The AJ noted that, “Complainant does not recall requesting an appeal and neither does she recall requesting a hearing. Neither party could produce, and EEOC cannot locate, a formal written request for a hearing.” The AJ further determined that the Agency provided sufficient evidence that a FAD had already been issued on the matter, as well as an appellate decision and, therefore, the AJ lacked jurisdiction to review Complainant’s complaint on the merits. Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ correctly determined that the instant complaint must be dismissed on jurisdictional grounds because a final agency decision and an appellate decision on the complaint has already been issued. Accordingly, we AFFIRM the Agency’s Final Order adopting the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. pointedly noted that the Agency failed to offer “evidence regarding whether and when the Report of Investigation was sent to Complainant, whether Complainant was notified of her rights under 29 C.F.R. § 1614.108(f), or whether the Complainant elected to receive a [FAD].” However, we determined that Complainant was on notice that the deadline to appeal the FAD (or challenge the propriety of the Agency issuing a FAD) fell on July 17, 2019, because the Agency provided sufficient evidence of receipt of the FAD, and the FAD “properly advised Complainant that she had thirty (30) calendar days after receipt of the FAD to file an appeal with the Commission.” This notice coupled with a lack of explanation for delayed filing resulted in dismissal. 2021001866 5 A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 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. 2021001866 6 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 July 7, 2021 Date