Darell C,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Feb 5, 2019

0120182467 (E.E.O.C. Feb. 5, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Darell C,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120182467

Agency No. ARCENT17AUG04897

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated June 7, 2018, 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 worked as a Director of
Emergency Services, GS-030-13, at the Agency’s facility in Afghanistan.

On October 9, 2018, Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination on the bases of race (African-American), sex (male), and color (Black)
when: (a) on March 20, 2017, Complainant was the only person who had not received a weapon
to protect himself; (b) on August 24, 2017, Complainant stated that he decided “enough was
enough and [he] would no longer” take BSGs leadership cavalier approach regarding his safety
and his life; (c) on September 20, 2017, named Agency officials did not apologize to
Complainant after the Garrison Commander allegedly stated “[i] his mind he feels that DES
personnel should have a weapon without a doubt,” which Complainant believed vindicated what
he had stated in the past; (d) on September 22, 2017, Complainant stated he was embarrassed and
humiliated because he could not provide “first-hand” knowledge of the total process to the

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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Badging and Screening portion of the ECP; and (e) on or about February 7 to September 22,
2017, Complainant was subjected to ridicule, disrespect, humiliation, and extremely belligerent
behavior.

The Agency dismissed the entire complaint for the untimely filing of the formal complaint. It
also dismissed claim one for failure to contact an EEO counselor in a timely, and claims b-e
pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim.

The instant appeal followed.

ANALYSIS AND FINDINGS

Timeliness of the formal complaint

The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency
shall dismiss a complaint which fails to comply with the applicable time limits contained in 29
C.F.R. § 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15)
days of receiving the notice of the right to do so.

Here the Agency argues that Complainant received the right to file a formal complaint on
September 22, 2017, but did not file his formal complaint until October 9, 2017. On appeal,
Complainant argues that while the notice was dated on September 22, 2017, it was not signed
and received by him until September 28, 2017, and therefore his formal complaint was timely
filed. The Agency presented no evidence of when Complainant actually received the complaint,
and given that Complainant provided evidence regarding the signature of the notice, we find his
complaint was timely filed.

Timeliness of EEO counselor contact (claim a)

EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should
be brought to the attention of the Equal Employment Opportunity Counselor within forty-five
(45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.

Here, the record indicates that Complainant first requested EEO counseling on August 26, 2017,
for an event that occurred five months prior. However, on appeal, Complainant states that he
had no knowledge of the time limits for contacting an EEO counselor given that he was a new
federal employee and had only previously been employed as a contractor. The Agency provides
no evidence that Complainant knew or should have known of the relevant time limits, including
no information of postings concerning the EEO complaint process in Complainant’s workplace
or training given to Complainant. In Ericson v. Department of the Army, EEOC Request No.
05920623 (January 14, 1993), the Commission stated that “the agency has the burden of
providing evidence and/or proof to support its final decisions.” See also Gens v. Department of
Defense, EEOC Request No. 05910837 (January 31, 1992).
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We are persuaded that Complainant was not aware of the time limits for contacting an EEO
counselor. As such, we find that equity considerations allow his delay in raising claim a to be
excused. See 29 C.F.R. § 1614.604(c).

Failure to state a claim – (claims b-e)

An agency shall accept a complaint from any aggrieved employee or applicant for employment
who believes that he or she 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. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). When the complainant does not allege he or she is aggrieved within the
meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim
pursuant to 29 C.F.R. § 1614.107(a)(1).

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the
holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is
actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's
employment. Thus, not all claims of harassment are actionable. As noted by the Supreme Court
in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand
comments, and isolated incidents (unless extremely serious) will not amount to discriminatory
changes in the ‘terms and conditions of employment’.” Following a review of the record, we
find that in the instant case, viewing the allegations together and assuming they occurred as
alleged, Complainant fails to state a viable claim of a discriminatory hostile work environment.
The actions alleged, without more, concern feeling embarrassed and being owed an apology, and
generalized allegations regarding events in the work place, and are simply insufficiently severe
or pervasive to state a valid hostile work environment claim.

Accordingly, the Agency’s decision is affirmed in part and remanded in part. Claim a is timely
and is remanded for further processing. The Agency’s dismissal of claims b-e is affirmed.

ORDER (E1016)
The Agency is ordered to process the remanded claim (claim a) 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. 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.
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A copy of the Agency’s letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights must be sent to the Compliance Officer as
referenced below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
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Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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.
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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 5, 2019
Date