EEOC Appeal No. 0120180279
01-04-2018
Dong F. v. Overseas Private Inv. Corp.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Dong F,1
Complainant,
v.
Ray W. Washburne,
President & Chief Executive Officer,
Overseas Private Investment Corporation,
Agency.
Appeal No. 0120180279
Agency No. 17-02-HRM
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated October 5, 2017, dismissing a formal 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
During the period at issue, Complainant worked as a Human Resources Specialist at the Agency's Human Resources Management (HRM), Overseas Private Investment Corporation (OPIC) in Washington D.C.
On September 12, 2017, Complainant filed the instant formal complaint. Complainant alleged that the Agency subjected him to harassment and a hostile work environment in reprisal for prior EEO activity when:
1. on September 5, 2017, he was frozen out of the performance appraisal process and the Acting Vice President (acting VP) had not accepted his revisions and ideas on various performance planning documents, choosing to seek clarification from his co-workers;
2. on September 1, 2017, the Acting VP commented to one of his co-workers that she felt Complainant was not supportive of HRM, after announcing his intention to leave;
3. on September 1, 2017, the Acting VP failed to recognize him for taking the initiative on a security waiver, the same type of initiative she previously reprimanded Complainant for taking;
4. on September 1, 2017, the Acting VP provided conflicting guidance to him and staff of HRM and the Office of the President/CEO about updating Staff Central regarding political appointees;
5. on August 31,2 017, the Acting VP omitted his performance management responsibilities from the contract she was negotiating with the Department of Interior's Business Center (IBC), Human Resources Operations Division, to temporarily assume performance of certain HRM functions;
6. on August 29, 2017, the Acting VP failed to move forward on his recommendation about when OPIC's workforce should be informed about the performance management process;
7. on August 29, 2017, the Acting VP provided him conflicting guidance about whether he needed to attend an IBC meeting;
8. on August 18, 2017, during an HRM staff meeting, the Acting VP did not accept his recommendations about whether certain HRM staff met with the specialized experience for the positions to be advertised, referring to him as an "alarmist;"
9. on August 17, 2017, during an HRM meeting, the Acting VP did not accept his recommendations that the better way to promote certain HRM staff members would be through accretion-of-duties procedures;
10. on or about August 16, 2017, in a conversation between Complainant, the Acting VP, and another co-worker, and after Complainant reminded the Acting VP that a third staff member would be attending a BIG training conference, the Acting VP stated that she did not approve the training and that the third staff member should not be out, in view of HRM's staff shortage;
11. on August 15, 2017, during a HRM staff meeting/conference call with IBC, which stated that it needed more lead time to accomplish the contract objectives, he stated he had expressed the same sentiments to the Acting VP, only to hear her state to IBC that she was unaware of the "depth" of the complexities;
12. on August 14, 2017, the Acting VP, upon asking Complainant whether he was leaving OPIC since she had just received a security clearance document for him, informed Complainant that she did not want to circulate information OPIC-wide listing him as a team lead if he was leaving;
13. on July 20, 2017, during a HRM staff meeting, the Acting VP provided inaccurate information about which HRM staff had spoken to her about training she canceled HRM-wide;
14. on July 17, 2017, during an HRM/IBC conference call, the Acting VP asked him at least four times about transitioning an individual from a "term" to a "permanent" appointment and, apparently during the same conference call, informed HRM staff that she intended to revise their performance plans and that they needed to contact a former supervisor for a performance write-up; and
15. on June 22, 2017, the Acting VP interrupted a meeting between HRM staff and the undersigned and, later that day during an HRM staff meeting, the Acting VP asked to talk about the "elephant in the room."
Complainant also listed additional discriminatory events between May 4, 2017 and June 16, 2017 concerning work assignments and related responsibilities made by the Acting VP to him and other HRM staff members.
In its October 5, 2017 final decision, the Agency dismissed the formal complaint for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1), finding that Complainant was not aggrieved.
The instant appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. 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).
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'."
An examination of the formal complaint and EEO Counselor's Report in this matter shows that Complainant addresses many incidents of alleged harassment. Complainant, on appeal, argues that in his decision to leave the Agency, "I exercised the sole option available to me to prevent continued harm. The Agency has not shown that they took an appropriate response to prevent or correct the harassment."
Further, Complainant argues that the Agency "also contends that I was not treated differently when in fact I was treated less favorably than others within my work center and was reprised against and harassed through a series of negative actions designed to isolate me. The public humiliation, belittling comments, and excessive daily scrutiny I was subjected to all speak to that actuality."
As a remedy, Complainant requested that compensatory damages for being forced to leave Agency employment because the Acting VP "has spoken negatively about me to my peers, humiliated me repeatedly in front of others, minimized my contributions to the Agency and diminished my ability to perform my work-related duties. She has made me ashamed that I could do nothing to stop her harassing behavior, mitigate my emotional distress or halt the damage to my professional reputation and professional relationships by her hand." Given the breadth of Complainant's allegations, we find that, when considering the incidents together, he has asserted sufficiently pervasive harassment to state a cognizable claim under the EEOC regulations that requires further investigation and adjudication. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993).
We REVERSE the Agency's final decision dismissing Complainant's formal complaint, defined herein as a harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER (E1016)
The Agency is ordered to process the remanded claims 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.
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. 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. 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
January 4, 2018
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below:
Atiba Copeland
19716 Crested Iris Way
Montgomery Village, MD 20886
Christopher B. Cowan, EEO Director
Overseas Private Investment Corporation
1100 New York Ave., NW #11205
Washington, DC 20527
__________________
Date
______________________________
Compliance and Control Division
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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120180279
7
0120180279
8
0120180279