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

Equal Employment Opportunity Commission

Oct 4, 2019

2019000882 (E.E.O.C. Oct. 4, 2019)

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

Jonathan V.,1
Complainant,

v.

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

Appeal No. 2019000882

Agency No. DON-18-42158-01767

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated October 11, 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 Marine Machinery
Mechanic, GS-11, at the Agency’s facility in Portsmouth, Virginia.

On August 17, 2018, Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination on the bases of race (“Black”), color (“Black”), national origin (“Black”),
and sex (male) when, on March 30, 2018, while doing safety inspections, a supervisor stated to
Complainant, “I am an American and you need to take your ass back to where you came from,”
and screamed at him about safety glasses which he was already wearing.

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

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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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).

Here, according to the formal complaint and related EEO counseling report, Complainant alleged
that on March 30, 2018, he was walking through the building when he observed workers
engaged in what he believed to be a safety violation. He went to talk to their supervisor (not his
supervisor) about the issue. He alleged that the supervisor reacted angrily and said, “I am an
American and you need to take your ass back to where you came from.” Complainant indicated
he believed this statement was “demeaning and racial.” Complainant said that another
supervisor heard the statement but said nothing. Complainant immediately contacted his own
supervisor about the encounter, who came on the scene and confronted the offending supervisor
about his treatment of Complainant. During this encounter, the offending supervisor loudly
accused Complainant of not properly wearing safety glasses.

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’.” Here, the action alleged, appears at first
glance to involve a single isolated incident involving an inappropriate comment made by a
supervisor to Complainant.

However, the record contains a statement submitted on appeal from Complainant’s attorney
which indicates that Complainant has another complaint (Agency No. DON-42158-00322)
alleging an ongoing hostile work environment that is pending before an EEOC Administrative
Judge (AJ) in EEOC Hearing No. 430-2019-00466X. Complainant, through his attorney,
requests that we consider the instant complaint as an amendment to (or consolidation with) the
pending hearing matter as it is, in essence, further evidence in support of the ongoing
harassment/hostile work environment claim. We agree with Complainant that the instant
complaint should be consolidated with the complaint currently pending before the AJ, as it is
clearly like and related to his ongoing hostile work environment claim.

Accordingly, the Agency's final decision dismissing the instant complaint is VACATED and the
matter is REMANDED to the Agency for further processing in pursuant to the following Order.
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ORDER

Within 15 calendar days of the date this decision is issued, the Agency shall inform the EEOC
Administrative Judge in EEOC Hearing No. 430-2019-00466X, in writing, of the need to either
consolidate the instant complaint with Agency No. DON-42158-00322 or consider it an
amendment to Agency No. DON-42158-00322. If the AJ determines it is necessary, the AJ will
decide how to supplement the evidentiary record.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
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). 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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency.

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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,
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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

October 4, 2019
Date