[Redacted], Ezra P., 1 Complainant,v.John P. Roth, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Aug 3, 2021

Appeal No. 2019005105 (E.E.O.C. Aug. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ezra P.,1 Complainant, v. John P. Roth, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2019005105 Hearing No. 570-2016-01557X Agency No. 9N0D15005 DECISION On July 6, 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 May 29, 2019 final decision concerning his 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.; Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.; and Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND In the fall of 2012, Complainant was hired by the Agency for a non-appropriated fund (NAF) position of Identification Clerk, NF-0303-I, at the Agency’s Ramstein School Age Program (RSAP), Airman and Family Services, 86th Force Support Squadron located at Ramstein Air Base, Germany. Believing that he was subjected to unlawful discrimination based on race (Black), color (Black), disability (Major Depression/Bi-polar), age, and in reprisal for prior protected EEO activity, 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. 2019005105 2 Complainant filed a formal EEO complaint on September 29, 2015. Complainant amended the formal complaint on November 24, 2015 and on January 19, 2016. The Agency framed his hostile work environment claims as comprised of the following events: 1. On June 17, 2015, he received a written reprimand from his first-level supervisor; 2. On June 17, 2015, his third-level supervisor, disapproved his request for Annual Leave/Leave Without Pay (LWOP); 3. On or about June 29, 2015, he was denied an extension to his Sick Leave while under a doctor’s care; 4. On June 29, 2015, his first-level supervisor and other in the chain of command, denied him a reasonable accommodation (LWOP); 5. On July 27, 2015 and July 31, 2015, he was charged Absent Without Leave (AWOL) by his first-level supervisor and threatened with removal; 6. On or about July 27, 2015, and on a number of previous occasions, his first-level supervisor verbally harassed him by saying she would get his “old ass” out of the Ramstein Air Base After School Program before she leaves Germany; 7. On July 27, 2015, his first-level supervisor stated she would not accept his doctor’s note and on several occasions she would make jokes about Complainant’s illness and his seeing a German doctor; 8. On August 12, 2015, he received a memorandum from his third-level supervisor stating that he was still AWOL; 9. On August 14, 2015, his first-level supervisor advised him that he would not be granted any additional LWOP and his third-level supervisor denied him LWOP as a reasonable accommodation; 10. On or about August 28, 2015, he was denied a reasonable accommodation by the head of the Human Resources Office, when Agency officials ignored his physician’s recommendation and did not extend his leave as requested; 11. On or about September 4, 2015, he received an “ordinarily resident” claim, issued by the Human Resources Office, calling into question his residency status and eligibility for NAF employment in Germany, which required his response; 2019005105 3 12. On or about September 9, 2015, he received a reprimand from his first- level supervisor, ignoring his physician’s observation that he was not competent enough to understand, nor should be making any legal and/or employment decisions that required a response; 13. On September 23, 2015, management scheduled him to work, in contrast to his doctor’s statement; 14. On or about November 3, 2015, management officials advised their staff to avoid contacting or speaking with Complainant, that any interaction would result in a disciplinary action; 15. On or about November 16, 2015, he observed, through his EEO Counselor’s Report, that his second-level supervisor had taken a photograph of him at a concert and submitted it to the EO office; 16. On November 24, 2015, the Human Resources Office delayed the submission of donated leave under the Voluntary Leave Transfer Program (VLTP), so he could get credit for the 6th or 20th November 2015 pay period; 17. On or about November 2015, the Human Resources Office delayed calculating his work schedule hours to reflect his LWOP status; 18. On or about December 17 or 18, 2015, he was issued a Notice of Proposed Removal, ignoring his physician’s recommendation of not being competent enough to understand nor should he be making any legal and/or employment decisions that required a response and denied a reasonable accommodation; 19. On or about December 22, 2016, the Agency did not stop or delay the processing of his removal, ignoring his physician’s recommendation of not being competent enough to understand nor should he be making any legal and/or employment decisions that required a response, and denied a reasonable accommodation; 20. On or about December 28, 2015, he was issued a Notice of Removal, ignoring his physician’s recommendation of not being competent enough to understand nor should he be making any legal and/or employment decisions that required a response and denied a reasonable accommodation; and, 21. On or about January 15, 2016 to date, the Agency did not stop or stay the processing of his removal, ignoring his physician’s recommendation of not 2019005105 4 being competent enough to understand nor should he be making any legal and/or employment decisions that required a response and denied a reasonable accommodation. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. The AJ remanded the case to the Agency for a final decision. On May 29, 2019, the Agency issued a decision dismissing the formal complaint for failure to state a claim, reasoning that Complainant was not legally employed and therefore lacked standing to file a federal EEO complaint. Specifically, the Agency stated that Complainant’s entire employment with it was “illegal under the terms of the [Status of Forces Agreement] SOFA, which prohibits employment of individuals who were not German citizens but ordinarily resident in Germany.” Consequently, in the Agency’s view, Complainant’s appointment to “any position designated as within the civilian complement” was “null and void”. The Agency concluded that as neither an applicant nor employee of the Agency, Complainant’s EEO complaint was accepted in error. Complainant filed the instant appeal. As an initial matter, Complainant contends that the Agency should be sanctioned for its unreasonable delay in issuing its decision. Regarding the dismissal of his formal complaint, Complainant strongly disputes the Agency’s determination that he is an “Ordinarily Resident” (hereinafter “OR”) and “illegally” employed by the Agency. In support, Complainant submits reems of personnel documents reflecting an employment history with the Agency reaching as far back as 1991 and encompassing a variety of positions. He also references his own earlier EEO cases against the Agency, including one which resulted in a finding of discrimination by an EEOC AJ, in challenging the Agency’s belief that Complainant lacks standing. ANALYSIS AND FINDINGS Standard of Review 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”). 2019005105 5 Dismissal 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). 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). As noted above, citing 29 C.F.R. 1614.103(c) and 107(a)(1), the Agency dismissed the complaint on the grounds that Complainant is not an employee and therefore lacks standing and fails to state a claim. In so doing, the Agency relies upon the terms of the North Atlantic Treaty Organization (NATO) Status of Forces Agreement (SOFA) which prohibits those determined to be “ordinarily resident” in the host state from being employed by the Agency. According to the Agency, SOFA distinguishes between three categories of employees that may be legally employed by a “sending state” (i.e. U.S. Forces/the Agency): (1) military personnel, (2) civilian component and (3) a host state’s local labor. More specifically, the civilian component includes civilian personnel who are “neither stateless persons nor nationals of any state which is not a party to [NATO] nor nationals of nor ordinary resident in the state in which the Force is located.” Pursuant to SOFA, contends the Agency, a U.S. citizen “ordinarily residing” in Germany is ineligible for employment with the Agency.2 The Agency argues that Complainant’s OR status is supported by: an August 2005 letter from an NAF Human Resources Office, rejecting his application for two vacancies as ineligible due to his OR status; Complainant’s prior employment by two private businesses in Germany; and an earlier determination3 by an EEOC AJ that Complainant has been an OR since 1994. However, we find that the Agency’s own treatment of Complainant over the years totally undermines its assertion that Complainant beyond the coverage of the federal EEO process. To wit, the record reflects that since the early 1990s Complainant has worked for the Agency, as well as the Department of the Army and the Army Air Force Exchange, in Germany. Complainant’s Agency positions have included a Management Assistant/Cashier, Custodial Worker, Recreational Aid, and Identification Clerk. According to Complainant, he returned to 2 According to the Agency, “The German government prohibits individuals who are ordinarily residents, such as [Complainant], from being employed by the U.S. Armed Forces to prevent them from evading German taxes, because individuals employed as members of the civilian component are exempt from many host nation taxes and obligations, and are granted other benefits. . . .” 3 The Agency cites Complainant v. Dep’t of the Air Force, EEOC Appeal No. 0120080284 (Jan. 12, 2010). 2019005105 6 the United States at the end of 2008. In 2012, he came back to Germany and his employment at the Ramstein Air Base, where he remained until his termination in January 12, 2016. Despite this lengthy history, the Agency would have us believe that this lengthy employment relationship was “illegal” and somehow “void,” thereby preventing Complainant from using the EEO process. Significantly, Complainant has previously filed EEO complaints against the Agency. For example, in 1993, an EEOC Administrative Judge found that Complainant’s termination, from his position as a Receiving Aide at a store on Ramstein Air Base, was discriminatory. See Complainant v. Dep’t of Air Force, EEOC Appeal 01964970 (Sept. 3, 1997). The Agency issued a final decision finding that its actions were retaliatory and ordered various remedies, including reinstatement. See id. When the Agency later declined to reinstate Complainant, reasoning that due to his work for a private corporation during part of 1990 and 1991 he was an OR, he filed an appeal with the Commission. See id. The Commission found that the Agency failed to provide evidence to support its bare assertion that Complainant was ineligible for reinstatement. See id. The Commission ordered the Agency to reinstate Complainant. See id. In Complainant v. Dep’t of Air Force, EEOC Appeal No. 0120080284 (Jan. 12, 2010), regarding Complainant’s belief that his non-selections were discriminatory, the Agency cited Complainant’s purported OR status as the legitimate reason for its decision. See id. Contrary to the Agency’s current contention that the Commission had explicitly determined Complainant to be OR in the 2010 appeal, instead the Commission simply found that Complainant failed to show pretext. See id. Notwithstanding the Agency’s claim that it could not select Complainant for the vacant position due to his OR status, it continued to employ him and, in later years, placed him in the position of Identification Clerk. For over one decade the Agency has pointed to OR status as the reason for not reinstating Complainant, selecting him for a vacancy, and, most recently, for precluding Complainant from even utilizing the EEO process. Yet, all the while, Complainant has worked for the Agency. In light of the extensive history of employment and EEO cases between Complainant and the Agency, we find the Agency’s current position disingenuous, and find further that the Agency cannot now persuasively assert Complainant is not an employee entitled to use the federal EEO process. The Agency’s treatment of Complainant over the decades, and particularly during his time as an Identification Clerk between 2013 and 2016, prevents us from reasonably concluding that Complainant was not an Agency employee during the relevant time. The Agency erred in dismissing the formal complaint and should have issued a decision on the merits of Complainant’s claims. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we REVERSE the Agency’s decision to dismiss the formal complaint. The matter is REMANDED to the Agency in accordance with this decision and the ORDER below. 2019005105 7 ORDER Within sixty (60) calendar days from the date this decision is issued, the Agency shall issue a final decision pursuant to 29 C.F.R. § 1614.110. A copy of the Agency’s final decision must be sent to the Compliance Officer as referenced below. 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). 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 (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. 2019005105 8 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. 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 (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. 2019005105 9 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 August 3, 2021 Date