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

Equal Employment Opportunity Commission

Sep 27, 2019

2019004741 (E.E.O.C. Sep. 27, 2019)

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

Marvella B,1
Complainant,

v.

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

Appeal No. 2019004741

Agency No. 19-48143-02053

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated May 14, 2019, 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 was employed as an Assistant Director, GS-15, with the
Environmental Protection Agency (EPA), in San Francisco, California. We note that
Complainant is not employed by the captioned Agency, the Department of the Navy.

On April 12, 2019, Complainant filed a formal complaint alleging that she was harassed and
subjected to a hostile work environment based on race (Latina) and national origin (Nicaraguan)
when, on June 13, 2017, while attending an annual work-related meeting in Seattle, Washington,
a named Department of the Navy employee, called her “Mexican,” although he knew she was
not Mexican, and laughed and took photos and videos of Complainant when she was required to
remove her belt and shoes and made to pass through the security metal detector multiple times.
Complainant further alleged that the Navy employee then repeated the incident to several people
and mockingly showed the photos and video that he took of Complainant.

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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The record in this matter indicates that both Complainant, an employee of the Environmental
Protection Agency, and the Department of the Navy’s Director of Environmental Compliance
Restoration Policy, were attending the annual meeting of the Navy Environmental Management
Executive Council, (EMEC) on June 13, 2017.

On June 15, 2017, after returning from the EMEC meeting in Seattle, Washington, Complainant
met with her EPA supervisor, reported the incident with the Navy employee and contacted the
Equal Employment and Diversity Manager at the EPA regarding the events she discussed with
her supervisor. The record further indicates that the EPA’s attorney reported to its Office of the
Inspector General Complainant’s complaint that she had been “improperly harassed” by a named
Department of the Navy employee. On June 29, 2017, Complainant met with the EPA EEO
Manager for an initial interview where she was advised that there was no jurisdiction to file a
complaint against a federal employee for another agency. On July 25, 2017, the EPA OIG
referred the matter to the Department of the Navy’s Office of the Inspector General for a joint
investigation.

According to the record, on February 12, 2018, the EPA received a draft copy of the Navy’s OIG
report. Complainant’s supervisor and the EPA attorney advised Complainant that the Navy
would complete the OIG report. However, Complainant’s request to the EPA attorney for a copy
of the report was denied. Thereafter, on March 13, 2019, she contacted the Navy EEO office
regarding the incident of June 13, 2017.

In its final decision, the Department of the Navy dismissed the instant complaint in its entirety
for failure to state a claim in accordance with EEOC Regulation 29 C.F.R. §1614.107(a)(1). The
Navy determined that Complainant was an employee of the EPA and that therefore, she had no
standing to raise discrimination claims against the Navy. Moreover, the Department of Navy
found that she was not an aggrieved employee with respect to the terms and conditions of her
employment with the EPA. The Navy further found that Complainant failed to bring her
concerns to the attention of a Navy EEO Counselor within a timely manner. Alternatively, the
Department of the Navy dismissed the mater in accordance with EEOC Regulation 29 C.F.R. §
1614.107(a)(2). This appeal followed.

On appeal, Complainant argues that the Department of the Navy’s determination that
Complainant has no standing to bring her claim is inconsistent with the fact that the official
alleged to have fostered the discriminatory hostile work environment is a Navy employee.
Moreover, Complainant contends that as the employer of the alleged harasser, the Navy is
responsible for the harassing conduct of its employees and is obligated to take corrective action
upon learning of the alleged discriminatory conduct of its employees.
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ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides that an agency shall dismiss a complaint
that fails to state a claim under 29 C.F.R § 1614.103 or § 1614.106(a). 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. However, a complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that a complainant cannot prove a set of facts in support of
the claim which would entitle him or her to relief.

In its opposition to the instant appeal, the Department of the Navy argues that Complainant
claims do not demonstrate that she is aggrieved because her allegations regarding the July 2017
incident, even if true, concern an isolated incident and was not sufficiently severe or pervasive so
as to alter the conditions of her employment. However, a fair reading of the record in this
matter, including the OIG report, shows that Complainant first became uncomfortable with the
alleged harasser in October 2016 when she declined his invitation to discuss a work matter over
drinks after a Federal Facilities Leadership Council meeting in Crystal City, Virginia.
Complainant contends that he became angry and confrontational after she declined to meet with
him. With this context, we find that Complainant’s allegations are sufficient to allege a viable
harassment claim that requires further investigation.

The claim in this matter involves a discriminatory harassment alleged to have been perpetrated
by a Navy employee against Complainant at a work-related conference. Complainant does not
allege any wrongdoing by her employing agency. The Agency errs in claiming Complainant, a
federal employee working for another agency, has no “standing” to file her EEO complaint
against the Navy. EEOC Regulation 29 C.F.R. § 1614.106(a) expressly states that a complaint
“must be filed with the agency that allegedly discriminated against the complainant.” Here, that
agency is the Navy. Complainant has alleged that a Navy employee committed acts of
discriminatory harassment and that she, through her own management, timely reported the matter
to the Navy. Her complaint is properly filed with the Navy. See Horvath v. Office of Personnel
Management, Appeal No. 01956761 (Oct. 25, 1996) (noting that “the Commission repeatedly
has held that a complainant is required to file his complaint against the particular agency which
allegedly has discriminated against the complainant regarding a term, condition, or privilege of
employment, even where the allegedly discriminating agency is not the employing agency”);
Warren v. Office of Personnel Management, EEOC Request No. 05950295 (Aug. 17, 1995)
(ruling that 29 C.F.R. § 1614.106(a) contains “no requirement that the complainant be either an
employee or applicant for employment with the defendant agency”).

Finally, the Agency’s determination that Complainant’s EEO contact was untimely is improper.
Complainant reported her concerns to an EPA EEO official immediately upon her return from
the EMEC meeting and well within the 45-day time limitation prescribed by EEOC regulations.

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Moreover, the record is clear that she was specifically and improperly advised by her employing
agency, the EPA, that she could not initiate an EEO complaint against the Department of the
Navy as was her intention. As indicated above, the record establishes that despite her due
diligence, Complainant was prevented by circumstances beyond her control from contacting a
Department of Navy EEO counselor within 45 days of June 13, 2017. As such, we conclude
there is adequate justification to exercise our discretion to excuse any delay in seeking EEO
counseling with the Agency. 29 C.F.R. § 1614.604(c).

CONCLUSION

Accordingly, the Department of the Navy’s decision dismissing the instant formal complaint is
REVERSED. The complaint is REMANDED to the Navy for further processing in accordance
with this decision and the ORDER below.

ORDER (E0618)
The Agency is ordered to process the remanded claims 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.
As provided in the statement entitled "Implementation of the Commission's Decision,” the
Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of
acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the
investigative file and notice of rights, and 3) either a copy of the complainant’s request for a
hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did
not receive a response from complainant by the end of the election period.
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.
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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.
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.
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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

September 27, 2019
Date