[Redacted], Gregg B., 1 Complainant,v.Jason E. Kearns, Chair, United States International Trade Commission Agency.

Equal Employment Opportunity Commission

Jun 14, 2021

Appeal No. 2021001046 (E.E.O.C. Jun. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gregg B.,1 Complainant, v. Jason E. Kearns, Chair, United States International Trade Commission Agency. Appeal No. 2021001046 Agency No. USITC-05-2020 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a November 13, 2020 final Agency decision (FAD) dismissing his 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as an International Trade Analyst, GS-1101-14, at its facility in Washington, DC. On October 29, 2020, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency discriminated based on his race (Asian-American) and color (Brown) when: 1. On August 22, 2020, it denied his request to work remotely/telework while overseas. 2. On August 22, 2020, it denied his request for extended leave without pay (LWOP). 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. 2021001046 2 3. On October 2, 2020, it denied his renewed request for extended LWOP, only granting him 30 days of LWOP, and renewed its denial of his request to telework overseas. 4. As a result of its refusal to allow him to work remotely and/or be on extended LWOP, he was forced to resign effective November 13, 2020.2 The Agency dismissed the complaint, without elaboration, for failure to state a claim asserting Complainant was not injured or aggrieved. The instant appeal followed. On appeal, Complainant via counsel argues that the issues in his complaint are as defined above, cites EEOC cases to support that his complaint states a claim, and argues that since issue 4 is appealable to the Merit Systems Protection Board (mixed) (unlike issues 1 - 3), issue 4 should be processed separately from issues 1 - 3. In opposition to Complainant’s appeal, the Agency argues that the FAD should be affirmed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(1) states 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 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). Complainant’s complaint states a claim. See Morman v. Defense, EEOC Appeal No. 0120080350 (Mar. 5, 2008) (claim that the complainant was denied LWOP in reprisal for EEO activity states a claim); McHugh v. Army, EEOC Appeal No. 0120133311 (Feb. 14, 2014) (claim that the complainant was denied telework based on race, color, age, and reprisal for EEO activity states a claim); Fulmer v. Justice, EEOC Appeal No. 01A40186 (Feb. 19, 2004) (claim that the complainant was constructively discharged based on his sex when the agency denied his request for a hardship transfer to relieve his wife’s medical condition states a claim). The FAD is REVERSED. 2 The Agency defined the EEO complaint as Complainant being forced to resign because of the events listed in issues 1 - 3 above. While Complainant alleged he was forced to resign for these reasons, he explicitly also alleged issues 1 - 3 as independently actionable claims. 2021001046 3 ORDER 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. Regarding claims 1 - 3, the Agency shall issue to Complainant a copy of the investigative file and also shall notify him 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. Running from the date this decision was issued, the Agency may process and investigate issue 4 with issues 1 - 3, so long as it implements the significant processing exceptions for issue 4 stated in 29 C.F.R. § 1614.302(d). 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. 2021001046 4 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. 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). 2021001046 5 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 June 14, 2021 Date