0120150143
03-23-2016
Thaddeus N.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Thaddeus N.,1
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120150143
Agency No. ARSMDC14APR03014
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 30, 2014, 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. and 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 worked as a Publics Affairs Officer at the Agency's Garrison Public Affairs Office in Fort Carson, Colorado.
On April 28, 2014, Complainant contacted the Agency's EEO Office believing he had been subjected to unlawful harassment and retaliation. When the matter could not be resolved, on June 2, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to retaliatory harassment on the bases of sex (male), disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973. In support of his claim, Complainant alleged that the following events occurred:
1. On or about July 25, 2013, Complainant's former supervisor (Supervisor) told him that the Supervisor was upset with him because he had reached a settlement;
2. Between July 25, 2013 and May 2014, the Supervisor delayed in the execution of the terms in the settlement and failed to comply with terms of the settlement.
3. On or about August 2013, the Colonel directed unreasonable security measures for an Agency civilian employee when Complainant returned to pick up my property from Building 3.
4. On or about September 3, 2013, Complainant was informed that he was not hired for a Public Relations job for which he interviewed in the private sector in Colorado Springs, Colorado. He believed the widely-dispersed hostile comments about his departure from the Agency from the Colonel adversely affected the outcome. He asserted that these comments were dispersed within the local community in which he conduct himself as a Public Affairs professional;
5. On or about September 2013, the Supervisor provided an employment reference for an Agency job at the Pentagon in violation of the settlement agreement;
6. On or about November 6, 2013, the Supervisor informed Complainant that he had recognized Complainant's resume when he voted for candidates to advance for a position for which Complainant had applied with the Agency's facility in in Huntsville, Alabama;
7. On or about November 26, 2013, the Supervisor sat on the selection panel for position in Huntsville, Alabama. His participation included asking interview questions of Complainant and providing voting input about his selection that was used by the hiring recommendation;
8. On or about November 26, 2013, the Supervisor told Complainant that he had embarrassed him by not including his name as a reference on the application for the Huntsville job and that Complainant probably would not get the job because of it;
9. On or about late November 2013, the Supervisor directed Complainant to include his name on an application for GS14 position with the Agency in Virginia;
10. On or about December 13, 2013, the Supervisor subjected him to further agitation with local Agency representatives while he was on paid administrative leave. The Supervisor directed Complainant to provide information normally gathered and given by a supervisor to the Agency's local senior military officer about one of the Supervisor's employees who was retiring;
11. (a) On or about December 16, 2013, the Supervisor informed Complainant that he was unable to return Complainant to his original job with the Agency which was something the Supervisor suggested.
11.(b) On or about January 15, 2014, Complainant learned that he was not hired for the position in Pueblo. He believed that the Supervisor and the Agency contributed to this outcome;
12. On or about February 13, 2014, Complainant learned that he was not hired for a Communications Specialist job with the City of Colorado Springs. Again, he believe these same factors contributed to the outcome-especially the inflammatory notice sent out by the Colonel that had not been corrected;
13. On or about March 14, 2014, Complainant learned that he had not been selected for the position in Virginia and suspected the Supervisor may have had further involvement in the selection process;
14. On or about March 14, 2014, Complainant learned that he had not been selected for a position in Italy and he suspected that the reference in his official personnel file (OPF) and his reputation were tarnished by the Colonel's email.
15. On or about April 3, 2014, the Supervisor further taunted Complainant with an email suggesting he apply for a job with the National Space Foundation. He reiterated to Complainant that he was upset with and would have been able to clear the record had Complainant not "given up" on his original claim by reaching a settlement agreement;
16. On or about April 10, 2014, the Supervisor reiterated in the last conversation with him that he remained upset and got in trouble for the way he supervised Complainant;
17. On or about April 18, 2014, Complainant learned that the Colonel's statement about him with negative connotations which was sent to over 1,000 recipients had not been corrected after the settlement. Instead, it had fostered a toxic environment about Complainant. This made him understand his problems with his job search.
18. On or about April 22, 2014, Complainant learned that documentation listing his termination remained in his personnel file in violation of the settlement agreement.
19. Between August 2013 and May 2014, Complainant applied for over 125 positions with the Federal Government. The Agency retaliated against him and interfered with his selections for those positions by allowing the Supervisor to continue to interfere with his job search, the toxic environment that the Colonel's email created about him; and the reference to the termination to remain in his OPF;
20. Between August 2013 and May 12, 2014, the Supervisor removed the addresses for two employees who worked for him from the Agency's global email address listing while leaving Complainant's address in the global listing. He thereby subjected Complainant to harassment and humiliation when he returned to the workplace and regained access to Complainant's account;
21. The Supervisor informed Complainant on numerous occasions that he was not aware of the terms of the settlement agreement that required references to be directed to the HR department. In order make sure that he was in compliance, the Agency would have had to inform him. The Agency retaliated against Complainant by not informing the Supervisor that he was not to provide any employment references;
22. Complainant believed the Agency's retaliation prevented him from being selected for positions in addition to those listed above. These include but are not limited to Department of the Army Public Affairs positions in Italy and Germany;
23. On or about May 7, 2014, a senior official sent an invitation that was "extendable to Friends and Guests of the Command." The event was cancelled after Complainant responded that he would attend. Complainant was later informed privately that the Colonel was unhappy about his involvement with Agency matters;
24. On or about May 15, 2014, Complainant went to an appointment with the former director of the Directorate of Training Doctrine (Director). Complainant had tried to cancel the appointment when he realized that he was getting mixed signals from the Agency, but was told the individual wanted to see him. Before the appointment, the Agency's attorney, who was involved in the settlement agreement, queried the Director for details about the purpose of Complainant visit which had been approved by the Supervisor.
The Agency issued Complainant a memorandum seeking clarification regarding events 19 and 22, as listed above. In response, Complainant provided another list of 53 events. These events occurred between September 2013 and August 2014. Complainant indicated that the Supervisor interfered with his application for positions with the Agency or that the emails and references from the Colonel had negatively impacted his ability to secure another position within the Agency. The Agency identified these events as C1 through C53.
The Agency dismissed claims 1, 3, 4, 5, 6, 7, 8, 9, 10, 11(a), 11(b), 12, 13, 17, and C1, C2, C3, C5, C6, C10, C11, C17, C18, C20, C21, C22, C25, C26, C27, C28, C29, C30, C31, C33, C34, C36, C37 pursuant to 29 C.F.R. �1614.107(a)(2) for failing to timely contact the EEO Counselor. The Agency noted that these events occurred outside of the 45 day time limit. As such, the Agency dismissed these events. The Agency dismissed events 1, 3, 9, 10, 15, 16, 20, 21, 23, and 24 pursuant to 29 C.F.R. �1614.107(a)(1) for failure to state a claim finding that Complainant failed to allege a personal loss or harm. Finally, the Agency dismissed events 2, 4, 5, 6, 7, 8, 9, 11(a), 11(b), 12, 13, 14, 15, 17, 18, 21, C1 through C53, because the Agency determined that Complainant alleged a claim of breach of the settlement agreement. The Agency held that these events were not new claims and if Complainant wished to pursue his claim of breach, he needed to contact the EEO Director. As such, the Agency dismissed the complaint as a whole.
This appeal followed. Complainant requested that the Commission reverse the Agency's dismissal while the Agency asked that we uphold its decision.
ANALYSIS AND FINDINGS
As an initial matter, we find that the Agency has improperly identified the complaint at hand. Complainant has alleged retaliatory harassment based on his prior EEO complaint which was settled. Complainant has argued that the Colonel and the Supervisor have taken steps to ensure that he is not hired for another position within the Agency. In addition, he was humiliated and subjected to a hostile work environment based on his prior EEO activity. In support of his claim, Complainant enumerated 24 events in his formal complaint. When the Agency sought additional information, Complainant listed another 53 events. The Agency should have reviewed Complainant's claim as a single claim of retaliatory harassment as opposed to 77 independent claims. Therefore, we shall review the Agency's dismissal in light of a single claim of retaliatory harassment.
The Agency dismissed several events pursuant to 29 C.F.R. �1614.107(a)(2). EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the Agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the Agency or the Commission to extend the time limit if the Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence Complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the agency or Commission.
We note that the Supreme Court of the United States held that a Complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. The Court defined such "discrete discriminatory acts" to include acts such as termination, failure to promote, denial of transfer, or refusal to hire, acts that constitute separate actionable unlawful employment practices. Id. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id. Upon review of the record, Complainant alleged a claim of harassment which included events which occurred within 45 calendar days of April 28, 2014, the date of his initial contact. Therefore, Complainant has alleged a timely claim of retaliatory harassment.
The Agency also dismissed some events pursuant to 29 C.F.R. �1614.107(a)(1) for failure to state a claim. As noted above, in his complaint, Complainant alleged a series of events which allegedly occurred from September 2013 to August 2014. Specifically, Complainant alleged that he was subjected to harassment which created a hostile work environment. Instead of treating these events as incidents of the claim of harassment, however, the Agency looked at them individually. Thus, we find that the Agency acted improperly by treating matters raised in Complainant's complaint in a piecemeal manner. See Meaney v. Dep't of the Treasury, EEOC Request No. 05940169 (Nov. 3, 1994) (an agency should not ignore the "pattern aspect" of a complainant's claims and define the issues in a piecemeal manner where an analogous theme unites the matter complained of). Consequently, when Complainant's claims are viewed in the context of Complainant's complaint of harassment, they state a claim and the Agency's dismissal of those claims for failure to state a claim was improper.
Finally, we note that the Agency determined that several of the events listed in the complaint constituted a claim of breach of the settlement agreement. The Agency indicated that Complainant needed to inform the Agency's EEO Director in writing of his claim of breach. First, we find that Complainant has in fact indicated that the Agency failed to comply with the terms of the settlement agreement in that the Agency has not cleared his OPF of a termination action. Complainant contacted the Agency's EEO Office in April 2014, regarding a claim of breach. In addition, Complainant alleged in the instant formal complaint that the Agency failed to comply with the terms of the settlement agreement. Therefore, we conclude that the Agency's EEO Director had been put on notice of the claim of breach but has failed to address his claim of breach. The Agency shall process Complainant's claim of breach accordingly.
In addition, Complainant has asserted a claim of retaliation in that the Supervisor and the Colonel have provided negative references. We find that such a claim, although it raises the termination action which was the subject of the prior EEO complaint, is a separate from the claim of breach of the settlement agreement. We find that this is part of Complainant's claim of retaliatory harassment and should be investigated accordingly.
Therefore, we conclude that the Agency improperly defined the complaint at hand and, therefore, improperly dismissed Complainant's claim of retaliatory harassment. In addition, Complainant alleged a separate claim of breach of the July 7, 2013 settlement agreement which must be address by the Agency pursuant to 29 C.F.R. � 1614.504.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERE the Agency's final decision and REMAND the matter for further action in accordance with the ORDER below.
ORDER
The Agency is ordered to process the remanded claim of retaliatory harassment 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 becomes final. 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 becomes final, 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. In addition, the Agency shall process Complainant's claim of breach of settlement agreement in accordance with 29 C.F.R. � 1614.504. The Agency shall resolve the matter and respond to the Complainant, in writing within 35 calendar days of the date of this decision.
A copy of the Agency's letter of acknowledgment to Complainant, a copy of the notice that transmits the investigative file and notice of rights, and a copy of the determination regarding breach must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 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
March 23, 2016
__________________
Date
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.
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