[Redacted], Wade K., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 27, 2021

Appeal No. 2021003088 (E.E.O.C. Sep. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wade K.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021003088 Agency No. ARIRWIN21FEB00630 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated April 30, 2021, dismissing his complaint alleging unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was in settlement negotiations with Agency personnel at the Agency’s Fort Irwin and Fort Bragg facilities for a prior EEO claim. On March 10, 2021, Complainant filed a formal complaint. The Agency characterized these claims as alleging that the Agency subjected Complainant to unlawful reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when: 1. On 21 January 2021, Complainant sent an email to several Agency employees in reference to settlement negotiations for his prior EEO complaint stating, "Lucky for the agency, there is a comparable GS-13 position at USACE Los Angeles District that you could easily reassign me to. Look into it sooner than later. IDR mediator is looking at 2 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. 2021003088 2 FEB, and this will be a key component” and no one responded to his email. 2. On 25 January 2021, an employee at the US Army Corps of Engineers (USACE) Los Angeles District, Los Angeles, CA, rescinded the vacancy announcement (VA), WTKC219052401161D. 3. On 25 January 2021, Complainant sent an email to Agency employees in reference to the VA at the USACE LA District that was rescinded, stating, "So this is fun. I guess we'll just have to see if any of you told them to cancel this job announcement. Remember to keep your records and emails. DISA never forgets" and no one responded to his email. 4. On 25 February 2021, Complainant sent an email to the South Pacific Division (SPD) Civilian Personnel Advisory Center (CPAC) and they failed to respond to his inquiry as to why the vacancy announcement, WTKC219052401161D was rescinded. The Agency dismissed these claims, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a cognizable claim. The Agency stated that the claims regarding non-response to emails did not show that Complainant was aggrieved. As to the email regarding the vacancy announcement being rescinded, the Agency argued it did not have jurisdiction because the complaint must be filed with the agency that is alleged to have discriminated against the complainant and has the authority to grant relief. Complainant filed the instant appeal. On appeal, Complainant contends the Agency misunderstood the nature of his complaint. He indicates he is alleging that one or more Agency employees contacted USACE in an effort to get them to cancel the job announcement, immediately after he told these Agency employees he was interested in the USACE job as part of a settlement for his prior EEO complaint, and that constitutes reprisal. On appeal, the Agency contends Complainant failed to state a claim, either by showing he was an aggrieved party (with respect to claims (1), (3), and (4)) or by filing his claim(s) with the correct agency (with respect to claims (2) and (4)). ANALYSIS AND FINDINGS EEOC regulations require the dismissal of complaints that fail to state a claim. See 29 C.F.R. § 1614.107(a)(1). To state a claim, Complainant must allege present harm inflicted on the basis of race, sex, religion, national origin, age, disability, or prior protected activity. See Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Concerning claims of reprisal, EEOC Regulations prohibit reprisal against an individual for opposing any practice made unlawful by Title VII of the Civil Rights Act (Title VII) (42 U.S.C. 2000e et seq.), the Equal Pay Act (29 U.S.C. 206(d)), the Age Discrimination in Employment Act (ADEA) (29 U.S.C. 621 et seq.), the Rehabilitation Act (29 U.S.C. 791 et seq.), or for participating in any stage of administrative or judicial proceedings under these statutes. 29 C.F.R. § 1614.101(b). 2021003088 3 In determining whether a complaint states a claim, the proper inquiry is whether the conduct if true would constitute an unlawful employment practice under the EEO statutes. Cobb v. Dep’t. of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997) (a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant cannot prove a set of facts in support of the claim which would entitle the complainant to relief; the trier of fact must consider all of the alleged harassing incidents and remarks and, considering them together in the light most favorable to the complainant, determine whether they are sufficient to state a claim). See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752-753 (1998) (referencing cases in which courts of appeals considered whether various employment actions were sufficient to state a claim under the civil rights laws). The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. See EEOC Compliance Manual Section 8, “Retaliation,” No. 915.003 (May 20, 1998), at 8-15; see also Burlington Northern & Santa Fe Railroad. Co. v. White, 548 U. S. 53, 126 S. Ct. 2405 (2006). In the instant matter, the Commission finds that the Agency did mischaracterize Complainant’s formal complaint as alleging four discrete events instead of one claim that “one of the 5 [named Agency employees] did in fact contact USACE to try to persuade them to cancel the announcement (and then subsequently repost it).” (Complaint File, pp. 5-6). Viewing the claim this way, Complainant is not challenging USACE’s cancellation of the vacancy announcement. Rather he is challenging the actions and motivations of Agency employees in allegedly contacting USACE to persuade them to cancel the vacancy announcement and later to persuade them to repost it to avoid liability. See Arnold P. v. Dep’t of Defense, EEOC Appeal No. 0120152924 (October 25, 2016) (“Upon review of the record, we find that Complainant alleged that unlawful retaliatory motives resulted in Agency's management providing a negative reference for Complainant to ODNI. As a result of the negative reference, Complainant believed that ODNI did not select him for a position. Thus, we find that Complainant is not challenging ODNI's non-selection. Rather, he is challenging the actions and motivations of the Agency's managers in providing what he alleged to be a bad reference to ODNI.” (emphasis in original)). These allegations, if true, could have a chilling effect on an employee's willingness to engage in the EEO process and thus states a claim. Both Complainant and the Agency acknowledge Complainant filed a prior EEO complaint with the Agency. (Complaint File, pp, 5-6; Complainant Appeal Brief; Agency Appeal Brief, p. 2). Complainant alleges that in reprisal for this prior complaint, one or more Agency employees contacted USACE to persuade them to cancel the vacancy announcement that Complainant advised the Agency would be an acceptable settlement of the prior complaint. The Agency appeal brief focuses on the argument that many of the facts alleged by Complainant were “unbeknownst to any of the [Agency] individuals” in question. However, this argument goes to the merits of the case, and not whether Complainant has stated a cognizable claim. 2021003088 4 Here, the formal complaint and Complainant's appeal brief clearly states that the cancellation and reposting was due to Agency employees contacting USACE with the ulterior purpose of preventing Complainant from obtaining that position. Contacting another agency to persuade them to cancel a job announcement so that a person with an EEO claim pending against the agency would not be able to take that position is an action that is likely to have a chilling effect on an employee’s willingness to engage in the EEO process. We find the Complainant has alleged sufficient facts which, if true, are reasonably likely to deter protected activity. Thus, Complainant has stated a cognizable claim, and the Agency improperly dismissed Complainant’s complaint for failure to state a claim. CONCLUSION The Agency's final decision dismissing the formal complaint is REVERSED and remanded for further processing as set forth below. ORDER (E0618) The Agency is ordered to process the remanded claims (Agency employees contacting USACE with the ulterior purpose of preventing Complainant from obtaining the identified position with USACE) 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) 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. 2021003088 5 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). 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. 2021003088 6 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. 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. 2021003088 7 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 September 27, 2021 Date