Ellen C.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jun 5, 2019

2019001597 (E.E.O.C. Jun. 5, 2019)

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

Ellen C.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal Nos. 2019001590, 2019001593, 2019001594,
2019001595, 2019001596, 2019001597 & 2019001598

Hearing Nos. 550-2016-00252X, 550-2017-00024X, 550-2017-00022X,
550-2017-00025X, 550-2017-00004X, 550-2017-00023X & 550-2017-00033X

Agency Nos. 16-4523A-01295, 16-4523A-02816, 16-4523A-02986,
16-4523A-03029, 16-4523A-03275, 16-4523A-03327 & 16-4523A-03498

DECISION

On November 28, 2018, Complainant filed seven (7) appeals with the Equal Employment
Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s November 3, 2018, final order concerning her equal employment opportunity (EEO)
complaints alleging 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. For the following reasons, the
Commission AFFIRMS the Agency’s final order.

The Commission may, in its discretion, consolidate two or more complaints of discrimination filed
by the same complainant. See 29 C.F.R. § 1614.606. Accordingly, the Commission exercises its
discretion to consolidate the captioned cases.

ISSUES PRESENTED

Whether the Administrative Judge properly dismissed Complainant’s class action complaints.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Data Support
Assistant at the Agency’s Puget Sound Naval Shipyard and Intermediate Maintenance Facility in
Bremerton, Washington.2

Starting on March 13, 2016, Complainant filed formal EEO complaints alleging that the Agency
retaliated against her, and other Agency employees, for prior protected EEO activity arising under
Title VII of the Civil Rights Act of 1964. The allegations include:

1. Agency Case No. 16-4523A-01295

a. Employees in the EEO office performed “invisible and imperceptible
investigations”;
b. An EEO Specialist (EEOS) manipulated EEO claims;
c. An EEO Manager (EEOM) allegedly physically assaulted an employee, and then
handled the EEO complaint filed against him;
d. The EEO Executive Director, two EEO Deputy Directors, EEOM, and EEOS used
their positions to continue to cover up Agency discrimination complaints;
e. The HR Director “hijacked” EEO claims at the informal stage “never to be seen
again”;
f. An EEO investigator shared documents with “unknown persons”; and
g. EEOS fragmented Complainant’s claims, lied about the claims in the Counselor’s
Report, withheld information from Complainant, ignored numerous claims of
sexual harassment, shared private information with an unknown individual, and
intimidated Complainant.

2. Agency Case No. 16-4523A-02816

a. Agency officials blocked emails from her representative and electronically blocked
attachments in emails;
b. Agency officials used the United States Postal Service (USPS) to manipulate the
delivery of mail “for their own personal gain”;
c. Agency officials withheld parts of Complainant’s EEO complaints, which gave her
an unfair disadvantage regarding the processing of her complaints; and
d. Agency officials were “cooking the books” for the Agency’s Management
Directive-715 and EEOC Form 462 reports to lower the number of EEO complaints
reported to Congress.

2 Complainant was removed from the Agency on August 9, 2016.
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3. Agency Case No. 16-4523A-02986

a. Employees in the EEO office concealed, withheld, and delayed EEO claims past
the regulatory time to process an EEO complaint; and
b. The Commander did not properly investigate Complainant’s allegations of sexual
assault and sexual harassment.

4. Agency Case No. 16-4523A-03029

a. EEOM willfully tampered with the mail (under the authorization of Agency
officials), which included opening, concealing, destroying, damaging, obscuring,
modifying, or substituting a delivery address to redirect the mail to someone other
than the intended recipient;
b. An Agency attorney submitted the wrong documents for one of Complainant’s EEO
complaints, which “contaminated” her case;
c. EEOM harassed Complainant to pick up her mail, after she was “emotionally
harmed” by Naval Criminal Investigative Services investigators;
d. A Director at the Commission (DC) and EEOM communicated behind
Complainant’s back and did not share information with her;
e. EEOM received a document from DC, and then shared it with an unknown third
party;
f. Agency officials used an employee at the USPS to conspire against Complainant,
and the class members, to manipulate the outcome of their EEO cases; and
g. Certified mail is “held hostage” to delay the processing of EEO complaints.

5. Agency Case No. 16-4523A-03275

a. DC had “infinite communications” with an Agency attorney, without a designated
letter of representation from the Agency;
b. DC conspired with the Agency to affirm the dismissal of her complaints; and
c. DC had ex parte communications with EEOM and an Agency attorney, without
including Complainant or her representative.

6. Agency Case No. 16-4523A-03327

a. the Agency used the informal and formal stages of the EEO process to dismiss
complaints that alleged dissatisfaction with the EEO process; and
b. the Agency “lost, delayed, withheld, transferred to unknown locations, or just put
in EEO agents’ desks” the complaints against “High Officials.”

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7. Agency Case No. 16-4523A-03498

a. DC sent Complainant false information;
b. DC sent Complainant’s information to an unknown individual and refused to reveal
the name of the individual;
c. DC allowed three named Agency officials access to her complaint information;
d. DC deliberately withheld her case file information;
e. DC had “infinite communications” with EEOM, which were concealed from
Complainant and her representative; and
f. DC affirmed the dismissal of her appeals and denied her due process.

Complainant indicated that these complaints were class action complaints, and pursuant to 29
C.F.R. § 1614.204(d), the Agency timely forwarded Complainant’s complaints to the EEOC’s San
Francisco District Office. On June 4, 2016, the Agency filed an opposition to class certification of
Complainant’s complaints.

On June 7, 2016, Complainant filed a motion to certify one of her complaints as a class action
complaint. Complainant defined the class as Agency employees from March 31, 2008, through the
present, who were targets of retaliation for seeking out guidance on the EEO process; contacting
an EEO representative; or filing an EEO complaint. Complainant noted that the scope of her class
was nationwide and listed the adverse actions against the class members. For example,
Complainant alleged that the Agency subjected them to constructive discharges, removals, denials
of promotions, threats, and negative performance evaluations.3

On November 14, and 18, 2016, the Agency filed six (6) responses to oppose class certification.
On November 21, 2016, Complainant filed six (6) additional motions to certify her complaints as
class actions, in which she reiterated the claims raised in her formal complaints.

On September 7, 2018, the Commission re-assigned the seven (7) complaints to an EEOC
Administrative Judge (AJ). On September 14, 2018, the AJ issued seven (7) separate decisions for
Complainant’s complaints. In all of her decisions, the AJ noted that 29 C.F.R. § 1614.204(d)(2)
provides that an administrative judge may dismiss a class complaint, or any portion of the
complaint, for any reason listed in 29 C.F.R. § 1614.107, or because it does not meet the
prerequisites of a class complaint under 29 C.F.R. § 1614.204(a)(2); and that 29 C.F.R.
§ 1614.107(a)(8) states that a complaint may be dismissed if it “alleges dissatisfaction with the
processing of a previously filed complaint.” The AJ found that Complainant alleged retaliation
with respect to the manner in which the Agency addresses EEO complaints. As such, the AJ
dismissed the seven (7) class complaints.

3 We note that Complainant filed prior EEO complaints on these claims, and she has now alleged
dissatisfaction with their processing by the Agency and the Commission.
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On November 3, 2018, the Agency issued a consolidated final order to fully implement the AJ’s
seven decisions (7) dismissing Complainant’s requests for class certification. Complainant filed
seven (7) separate appeals but did not provide a statement in support of her appeals. The Agency
filed seven (7) opposition briefs on February 7, 2019.

CONTENTIONS ON APPEAL

On appeal, the Agency asserts that the AJ properly denied certification of Complainant’s class
complaints because her allegations reflected a dissatisfaction with the processing of EEO
complaints. Accordingly, it argues that the AJ’s dismissal was consistent with 29 C.F.R.
§ 1614.107(a)(8). The Agency requests that the Commission affirm its final order.

ANALYSIS AND FINDINGS

Standard of Review

In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”);
see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo). This essentially means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and the Agency’s, factual
conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment discrimination
statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the parties,
and . . . issue its decision based on the Commission’s own assessment of the record and its
interpretation of the law”).

Certification of Class Complaints

A class complaint is a written complaint of discrimination filed on behalf of a class by the agent
of the class alleging that: (i) the class is so numerous that a consolidated complaint of the members
of the class is impractical; (ii) there are questions of fact common to the class; (iii) the claims of
the agent of the class are typical of the claims of the class; and (iv) the agent of the class, or, if
represented, the representative, will fairly and adequately protect the interests of the class. 29
C.F.R. § 1614.204(a)(2).
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A class complaint may be dismissed if it does not meet each of these four requirements, or for any
of the procedural grounds for dismissal set forth in 29 C.F.R. § 1614.107. See 29 C.F.R. §
1614.204(d)(2).

In this case, we find that the AJ properly dismissed all seven (7) of Complainant’s requests for
certification of her class action complaints. Upon careful review of the records, we find that
Complainant’s allegations were related to the processing of EEO complaints, against officials at
the Agency and the Commission. These allegations were properly dismissed pursuant to 29 C.F.R.
§ 1614.107(a)(8). Accordingly, we AFFIRM the Agency’s final order fully adopting the AJ’s
decisions to dismiss Complainant’s seven (7) class action complaints.

EEOC regulations further provide that, when an agency dismisses a class complaint, it shall inform
the complainant either that the complaint is accepted and filed as an individual complaint of
discrimination; or that the individual complaint is also dismissed in accordance with 29 C.F.R.
§ 1614.107(a). See 29 C.F.R. § 1614.204(d)(7). We note that the Agency did not make a
determination regarding Complainant’s individual complaints of reprisal discrimination in the
final order. However, we find that Complainant’s individual claims should also be dismissed
pursuant to 29 C.F.R. § 1614.107(a)(8).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final order fully adopting the AJ’s
dismissals of Complainant’s class action complaints. We also find that Complainant’s individual
claims of reprisal discrimination should be dismissed.

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.
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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 (S0610)
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. 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.

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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

June 5, 2019
Date