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

Equal Employment Opportunity Commission

Feb 9, 2021

Appeal No. 2021000370 (E.E.O.C. Feb. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Virginia T.,1 Complainant, v. John P. Roth, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2021000370 Agency No. 8G0J2000859 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated September 29, 2020, dismissing a formal 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Human Resource Specialist, 0210, GS 7 at the Agency’s 14 Flying Training Wing (FTW), Civilian Personnel Office in Columbus Air Force Base, Mississippi. On July 15, 2020, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On August 21, 2020, Complainant filed a formal EEO complaint.2 According to the Agency’s final decision, Complainant alleged that the Agency discriminated against her and subjected her 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. 2021000370 2 to a hostile work environment based on race, sex, color, disability, age, and in reprisal for prior protected EEO activity when: A. The claim in the Amended Informal Charge which states: “From on or about November 16, 2016, Complainant, despite being vastly qualified, has repeatedly sought certification and the opportunity to apply for multiple positions of upward mobility, including a position which she was in line to receive, but was denied certification, the opportunity to apply and compete and the position in favor of a less qualified, less educated and less tenured candidates. Agency officials have failed to interview, compete or select Complainant, on multiple occasions over the last two years, for the positions she was vastly more qualified for than less qualified women. Other African American candidates have had similar experiences and have reported the same to Agency officials, but no action has been taken to terminate these racial practices. Record evidence will reveal that Complainant has been subject to racial, gender, and age discrimination and retaliation in her effort to be qualified, certified and selected for promotion. Indeed a pattern and practice of racial discrimination has gone unfettered where the agency officials have failed to (1) properly advertise for job openings; (2) certify applicants for eligibility to apply for openings: (3) interview and select qualified African American applicants; (4) process the most qualified applicants in a non- discriminatory manner; and (5) properly allow persons who are qualified to interview and otherwise compete for positions consistent with OPM and agency policies and procedures and in compliance with Title VII and other federal regulations. As of this writing, agency officials have sought to conceal these racist attitudes, making it possible for a pattern and practice of discrimination to occur. As stated generally in the Notice of Rights and Responsibilities, Complainant claims she was discriminated on the basis of race, color, sex, age, and disability. B. The claim in the Amended Informal Charge which states: “From on or about November 15, 2016 to the present, agency supervisors have refused to allow Complainant to perform her duties without interference; without second-guessing and disrespect; she has been subjected to interference in the performance of her duties and was secretly castigated in a supervisor file.” As stated generally in the Notice of Right and Responsibilities, Complainant claims she was discriminated against based on race, color, sex, age, and disability. C. The claim in the Formal Complaint which states: “From on or about May 2 The record indicates that Complainant amended her formal complaint on August 13, 2020, to include retaliatory harassment. 2021000370 3 1, 2018 to the present, Complainant has been forced to perform the duties of the Program Manager and a Victim Advocate Specialist.” As stated generally in the Notice of Rights and Responsibilities, Complainant claims she was discriminated on the basis of race, color, sex, age, and disability. D. The claim in the Formal Complaint which states: “On or about February 21, 2020, Complainant was detailed to the Accounting Department to work on special projects because the agency wanted to investigate whether Complainant was engaged in misconduct while she was assigned to the Sexual Assault Prevention and Response (SARP) office. Since February 21, 2020, Complainant has been unable to perform her duties as Sexual Assault Victim Advocate.” As stated generally in the Notice of Rights and Responsibilities, Complainant claims that she was discriminated on the basis of race, color, sex, age, and disability. E. The claim in the Formal Complaint which states: “From on or about May 1, 2020, Complainant was questioned about alleged misconduct and claimed that she had performed her duties.” As stated generally in the Notice of Rights and Responsibilities, Complainant claims she was discriminated on the basis of race, color, sex, age, and disability. F. The claim in the Formal Complainant which states: “On July 1, 2020, Complainant was issued a Proposed Notice of Suspension in connection with false and misleading allegations, as referenced in the attached document.” As stated generally in the Notice of Rights and Responsibilities, Complainant claims she was discriminated on the basis of race, color, sex, age, and disability. G. The claim in the Formal Complaint which states: “From on or about May 1, 2018 to the present, Complainant has been subject to surveillance and micromanagement in the form of interrogatories related to her whereabouts, the purchase of a coffee machine, breaks, performance and the like; attached hereto and incorporated herein as if fully set forth, please find documentation related to the causes of action set forth above. Additional documents will be forthcoming.” As stated generally in the Notice of Rights and Responsibilities, Complainant claims she was discriminated on the basis of race, color, sex, age, and disability. H. The claim in the Formal Complaint with states: “On December 6, 2019, Complainant requested and was denied a reasonable accommodation for her disability.” As stated generally in the Notice of Rights and Responsibilities, Complainant claims she was discriminated on the basis of race, color, sex, age, and disability. 2021000370 4 I. The claim in the Formal Complainant which states: “On June 4, 2020, Complainant was pressured to sign a document forcing her to accept a demotion form a GS-11 to a GS-7 classification.” As stated generally in the Notice of Rights and Responsibilities, Complainant claims she was discriminated on the basis of race, color, sex, age, and disability. J. Whether Complainant was discriminated against on the basis of race, sex, and disability when on July 1, 2020, the 14 FSS/FSC issued her a Proposed Notice of suspension. As stated generally in the Notice of Rights and Responsibilities, Complainant claims she was discriminated on the basis of race, color, sex, age, and disability. K. Whether Complainant was discriminated against on the basis of race, sex, and disability when on June 4, 2020, the 14 FSS/FSC demoted from GS- 11 to a GS-7 classification. As stated generally in the Notice of Rights and Responsibilities, Complainant claims she was discriminated on the basis of race, color, sex, age, and disability. L. Whether Complainant was discriminated against on the basis of race, sex, and disability when on May 1, 2020, the 14 FSS/FSC questioned Complainant about alleged misconduct. As stated generally in the Notice of Rights and Responsibilities, Complainant claims she was discriminated on the basis of race, color, sex, age, and disability. M. Whether Complainant was discriminated against on the basis of sex and disability when on May 1, 2020, Columbus Air Force Base subjected her to surveillance and micromanagement. As stated generally in the Notice of Rights and Responsibilities, Complainant claims she was discriminated on the basis of race, color, sex, age, and disability. N. Whether Complainant was discriminated against on the basis of race, sex, and disability when on February 21, 2020, Columbus Air Force Base detailed to 14 CPTS to work on special projects. As stated in the Notice of Rights and Responsibilities, Complainant claims she was discriminated on the basis of race, color, sex, age, and disability. O. Whether Complainant was discriminated against on the basis of race, sex, disability when on December 6, 2019, Columbus Air Force Base denied her reasonable accommodations for her disability. As stated generally in the Notice of Rights and Responsibilities, Complainant claims she was discriminated on the basis of race, color, sex, age, and disability. P. Whether Complainant was discriminated against on the basis of race, sex, and disability when on May 1, 2018, Columbus Air Force Base forced her 2021000370 5 to perform the duties of the Program Manager and a Victim Advocate Specialist. Q. Whether Complainant was discriminated against on the basis of race, sex, and disability when since November 16, 2016, Columbus Air Force Base failed to hire and/or promote her repeatedly for positions she was vastly qualified for in favor of a less qualified, less educated and less tenured candidates. As stated generally in the Notice of Rights and Responsibilities, Complainant claims she was discriminated on the basis of race, color, sex, age, and disability. R. Whether Complainant was discriminated against on the basis of race, sex, and disability when on November 15, 2016, Columbus Air Force Base (Agency Supervisors), refused to allow her to perform her duties without interference; without second-guessing and disrespect; and was secretly castigated in a supervisor file. On September 29, 2020, the Agency dismissed the formal complaint on several procedural grounds. First, the Agency dismissed claims A, B, C, D, E, G, H, L, M, N, O, P, Q, and R for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency indicated that Complainant initiated EEO Counselor contact on July 15, 2020, which it found well beyond the 45-day limitation period. Second, the Agency dismissed claim I for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1), finding that Complainant failed to identify who and how the alleged individuals pressured her. Third, the Agency dismissed claims I and K as matters raised before the Merit Systems Protection Board (MSPB or Board), pursuant to 29 C.F.R. § 1614.107(a)(4). Finally, the Agency dismissed claims F and J, finding that these matters incidents consisted of a proposal to take a personnel action, pursuant to 29 C.F.R. § 1614.107(a)(5). The instant appeal followed. On appeal, Complainant asserts that she timely contacted an EEO Counselor because she has alleged that she was subjected to a pattern of continuing harassment that began as early as 2016 and continued to the date she filed her complaint on August 21, 2020. Consequently, Complainant explains that the discrete acts (including the proposed suspensions and subsequent demotion identified in claims F, I, J, and K) are part of her discriminatory harassment claim. 2021000370 6 ANALYSIS AND FINDINGS Claims I and K (raised before the MSPB) Based on our review of these claims, we find that claims I and K are not properly before the Commission. The record indicates that Complainant filed an appeal (Docket Number AT-0752- 20-0736-I-1) with the MSPB alleging a constructive demotion from GS-11 to GS 07. An initial decision was issued by the MSPB Administrative Judge on September 11, 2020. The Board, however, has not yet issued a decision on the merits of that appeal. While technically the MSPB AJ dismissed Complainant’s appeal without prejudice, it is clear that Complainant’s appeal will be refiled and considered by the Board once the related Lucia v. Securities Exchange Commission, 138 S. Ct. 2044 (2018) decision issue is resolved.3 We further note that the Commission will not accept appeals from MSPB dismissals without prejudice. See 29 C.F.R. § 1614.303(a). Under these unusual circumstances, we construe Complainant’s appeal of her removal as still pending before the MSPB and, therefore, the present appeal to EEOC is premature. Therefore, we affirm the Agency’s dismissal of these claims pursuant to 29 C.F.R. § 1614.107(a)(4). Because we affirm the Agency’s dismissal of claim I on these procedural grounds, we need not address the Agency’s alternative reasons for dismissing claim I. Claims F and J (proposed suspensions) Pursuant to 29 C.F.R. § 1614.107(a)(5), an agency shall dismiss a formal complaint which alleges that a proposal to take a personnel action, or other preliminary test to taking a personnel action, is discriminatory. Here, claims F and J allege that Complainant was issued proposed suspensions. However, claims of retaliation are expressly excepted from dismissal in the regulation. We note that Complainant alleged unlawful reprisal for prior EEO activity as one of the bases of her complaint. Therefore, we reverse the Agency’s dismissal of these claims pursuant to 29 C.F.R. § 1614.107(a)(5). Claims A, B, C, D, E, G, H, L, M, N, O, P, Q, and R (untimely EEO Counselor contact) The Agency improperly dismissed claims A, B, C, D, E, G, H, L, M, N, O, P, Q, and R for untimely EEO Counselor contact. Complainant initiated EEO Counselor contact on July 15, 2020. The record reflects that claims F and J, which were timely raised, are sufficiently related to claims A, B, C, D, E, G, H, L, M, N, O, P, Q, and R that collectively they constitute a single claim of ongoing discriminatory harassment/hostile work environment. As such, Complainant harassment claim was timely raised and should not have been dismissed by the Agency. The Commission has held that “[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filling period. 3 The MSPB AJ indicated that the Lucia matter was currently pending before the Board and represented that Complainant’s appeal would be automatically refiled by the Board on or before March 11, 2021. 2021000370 7 This includes incidents that occurred outside of the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence.” EEOC Compliance Manual, Section 2, Threshold Issues at 2 - 75 (revised July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)). Therefore, we reverse the Agency’s dismissal of these claims for untimely EEO Counselor contact. We further acknowledge that claims H and O involve an alleged denial of reasonable accommodation and the Commission has specifically held that the denial of a reasonable accommodation constitutes a recurring violation that repeats each time the accommodation is needed. Harmon v. Office of Personnel Management, EEOC Request No. 05980365 (Nov. 4, 1999). Further, the EEOC Compliance Manual, Section 2, “Threshold Issues,” p. 2-73, EEOC Notice 915.003 (My 21, 2005), provides that because an employer has an ongoing obligation to provide a reasonable accommodation failure to provide such accommodation constitutes a violation each time the employee needs it. CONCLUSION Accordingly, we AFFIRM the Agency's final decision dismissing claim I and K. We REVERSE the Agency’s final decision dismissing claims A, B, C, D, E, F, G, H, J, L, M, N, O, P, Q, and R and REMAND these claims to the Agency for further processing in accordance with the ORDER below. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. 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. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant 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. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. 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) 2021000370 8 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. 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). 2021000370 9 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. 2021000370 10 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 February 9, 2021 Date