Dewitt L.v.Dep’t of the Army

Equal Employment Opportunity Commission

Nov 6, 2019

EEOC Appeal No. 2019004922 (E.E.O.C. Nov. 6, 2019)

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

Dewitt L.,1
Complainant,

v.

Ryan D. McCarthy,
Secretary,
Department of the Army,
Agency.

Appeal No. 2019004922

Agency No. ARRIA19MAR00957

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated May 10, 2019, dismissing his complaint of
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 worked as a Materials Handler
at the Agency’s Rock Island Arsenal facility in Rock Island, Illinois.

On May 1, 2019, Complainant filed a formal complaint alleging that the Agency subjected him
to discrimination on the basis of disability when: (1) on or about March 4, 2019, an incident
report on Complainant’s February 26, 2019 medical incident was prepared without his
involvement; (2) on February 26, 2019, his supervisors were not the first to respond when he
called for help when he was vomiting in the workplace; (3) on January 14, 28 and February 11,
2019, his supervisor allegedly called him his “favorite turd”; and (4) unidentified persons
allegedly made fun of Complainant and made sarcastic remarks.

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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2
The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state
a claim. The instant appeal followed.

ANALYSIS AND FINDINGS

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 has stated a viable claim of a discriminatory hostile work environment.

A fair reading of the complaint, in conjunction with the related EEO counseling report indicates
that Complainant alleges that he has been made an object of ridicule by his supervisor and
coworkers because of his disability. In support of this claim, Complainant asserts that he is
constantly “made fun of and has been the butt of jokes and sarcastic remarks,” including his
supervisor referring to him as his “favorite turd” in front of his coworkers on a number of
different occasions.2 In addition, Complainant alleged that management did not provide him
with appropriate and timely medical assistance for the February 26, 2019 incident and that his
supervisor brushed off Complainant’s concerns by stating that “how was [he] supposed to know
it [the medical emergency] was for real.” By alleging this ongoing pattern of disability-based
harassment, we conclude Complainant has sufficiently asserted a viable hostile work
environment claim that requires further investigation and processing. As such, it should not have
been dismissed by the Agency.

2 The EEO counselor reported that the team leader indicated that other employees had told him
that the supervisor referred to Complainant as a “turd.”
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As a final matter, we note that in his appeal, Complainant alleges that he is being denied
reasonable accommodation and has been instructed to do tasks that exceed his limitations. Given
that these are not part of the instant complaint, Complainant should seek EEO counseling if he
desires to pursue such claims further.

Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED
and the complaint is REMANDED for further processing pursuant to the following Order.

ORDER

The Agency is ordered to process the remanded claim (ongoing harassment) 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.

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 (K0618)
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.
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).
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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.
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 (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.
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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

November 6, 2019
Date