[Redacted], Walter W., 1 Complainant,v.William J. Burns, Director, Central Intelligence Agency, Agency.

Equal Employment Opportunity Commission

Dec 7, 2021

Appeal No. 2020004573 (E.E.O.C. Dec. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Walter W.,1 Complainant, v. William J. Burns, Director, Central Intelligence Agency, Agency. Appeal No. 2020004573 Agency No. 20-19 DECISION On August 14, 2020, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a July 14, 2020, final Agency decision (FAD) dismissing his complaint of employment discrimination. BACKGROUND Complainant was employed by the Agency as a Technical Intelligence Officer (Recruitment Team Lead), GS-13. On March 11, 2020, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency retaliatorily harassed and discriminated against him based on reprisal for his prior EEO activity under an EEO statute that was unidentified in the record when: 1. On April 10, 2019, Manager 1, the Chief of Staff up to April 29, 2019, tried to convince Division Chiefs 1 and 2 - her subordinates, not to select him for the Recruitment Team Lead position. Division Chief 1 was the selecting official. 2. On 10 April 2019, after Division Chief 1 nevertheless selected Complainant, Manager 1 threatened to hold Division Chief 1 accountable if anything negative happened because of his choice. 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. 2020004573 2 3. From April 10, 2019 - May 20, 2019, Manager 1 gave Complainant excessive scrutiny, including questioning Division Chief 1 about having a conflict of interest because he had an outside painting business with Complainant. Division Chief 1 was becoming Complainant’s supervisor. 4. From April 10, 2019 - May 20, 2019, exaggerated allegations of harassment were levied against him with the Agency's Anti-Harassment Program. 5. On August 8, 2019, he was removed from his Recruitment Team Lead job pending an investigation by the Agency's Anti-Harassment Program into this alleged harassment. 6. On 15 January 2020, he was given a “Letter of Reprimand” by Manager 1’s supervisor that notified him he was permanently removed from his Recruitment Team Lead job duties and was barred for one year from getting a promotion, a performance award, a quality step increase, a within-grade increase, or a time off award. The Agency dismissed events 1 - 5 because Complainant initiated EEO counseling far beyond the 45-day time limit. He initiated EEO counseling on January 30, 2020. The Agency dismissed events 4 - 6 for failure to state a claim because they were a prohibited collateral attack against another proceeding - the Anti-Harassment Program. The instant appeal followed. On appeal, by counsel, Complainant argues that incidents 1 - 6 are all one claim of harassment, and because he timely initiated EEO counseling on the most recent incident - the “Letter of Reprimand” - his entire harassment claim is timely. Complainant asserts he claimed “management” encouraged complaints against him and referred them to the Anti-Harassment Program. He argues his challenge to management accusing him of misconduct, the management investigation into it, and being given a “Letter of Reprimand” are not collateral attacks on a proceeding. ANALYSIS AND FINDINGS The record does not have the Agency's Anti-Harassment Program investigation documents, nor the “Letter of Reprimand”. But the EEO counselor wrote Manager 1 told her complaints were made to the Front Office that Complainant yelled and screamed, and because the Anti- Harassment Program made a “true finding”, management permanently took away his Recruitment Team Lead duties. An EEO complaint that an agency encouraged another employee to attack the complainant with allegations of sexual harassment fails to state a claim because it chills the filing of EEO complaints by aggrieved persons, and agencies have no authority to restrain an employee from using the EEO process to raise their claims. Joseph v. Transportation, EEOC Appeal No. 01981447 (Dec. 21, 1998). Likewise, a claim about being the subject of an internal harassment investigation does not state a claim because the complainant is not aggrieved by the investigation itself. Brady v. Transportation (FAA), EEOC Appeal No. 0120103652 (Jan. 25, 2011). 2020004573 3 The information Complainant gave the EEO counselor and put in his EEO complaint do not show Joseph, which is akin to his case, and Brady do not apply. Event 4 fails to state a claim. An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1) & .107(a)(2). An “objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive” and the complainant subjectively perceives it as such. Harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of a complainant's employment. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 - 22 (1993). A hostile work environment claim is comprised of a series of separate acts that collectively constitute one unlawful employment practice. National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 117 (2002). Unlike a claim based on discrete acts of discrimination, a hostile work environment claim is based on the cumulative effect of individual acts that may not themselves be actionable. Id. at 115. A hostile work environment claim will not be time barred if all acts constituting the claim are part of the same unlawful practice even if some component acts of hostile work environment fall outside the statutory time period so long as an act contributing to the claim falls within the filing period. Id. at 117. Discrete incidents which are part of the hostile work environment that occurred more than 45 calendar days prior to Complainant contacting an EEO counselor may only be challenged as part of the hostile work environment claim and are not independently actionable (meaning, for example, no instatement or back pay for an untimely demotion claim itself). EEOC Compliance Manual, Threshold Issues Sec. 2-IV- C, OLC Control No. EEOC-CVG-2000-2 (REV. July 21, 2005). We find Complainant’s hostile work environment claim that Manager 1 discouraged the selecting official from choosing him to be Recruitment Team Lead, expressed dismay when he did, and questioned his new supervisor about having a conflict of interest since he had an outside painting business with Complainant (events 1 - 3) ends there. We disagree with Complainant that claims 5 and 6 are part of the above hostile work environment. Complainant wrote he and Division Chief 1 dissolved their painting service to eliminate the perception of a conflict of interest - he did not contend his Recruitment Team Lead duties were removed because of the conflict. Nor did Complainant explicitly allege Manager 1 was the person who removed his Recruitment Team Lead duties pending the Anti-Harassment Program investigation. Manager 1 did not give him the Letter of Reprimand. Because events 5 and 6 are not part of the incidents 1 - 3 hostile work environment, we find Complainant failed to timely initiate EEO counseling on incidents 1 - 3. We disagree with the Agency that Complainant’s EEO complaint on incidents 5 and 6 fail state a claim because they were a collateral attack against another proceeding - the Anti-Harassment Program. 2020004573 4 While the decision by the Anti-Harassment Program to do a harassment investigation, how it did it, and any recommendation on discipline the Program made were part of the Anti-Harassment Program proceeding, the decisions to (1) initially suspend Complainant’s Recruitment Team Lead duties and (2) later give him a “Letter of Reprimand” which notified him he was permanently removed from them and was barred for one year from getting a promotion, a performance award, a quality step increase, a within-grade increase, or a time off award were ultimately management decisions apart from the Anti-Harassment Program. But event 5 is a discrete incident because it was a personnel action - Complainant’s Recruitment Team Lead duties were removed pending an investigation of harassment allegations against him. Because Complainant initiated EEO counseling more than 45-days after his Recruitment Team Lead duties were removed, event 5 is properly dismissed for being untimely. Because Complainant timely initiated EEO counseling on event 6 and it states a claim, the Agency’s dismissal of this claim is REVERSED. The Agency’s dismissal of events 1 - 5 is AFFIRMED. ORDER (E0618) The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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). 2020004573 5 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). 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. 2020004573 6 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. 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. 2020004573 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 December 7, 2021 Date