Maximo S,1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 21, 2020

2020002619 (E.E.O.C. Sep. 21, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maximo S,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 2020002619 Agency No. ARCEALB19SEP03796 DECISION Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from the Agency's January 22, 2020 dismissal of 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.2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Deputy Director, Tribal Liaison, GS-13, at the United States Army Corps of Engineers (“USACE”) Tribal Nations Technical Center of Expertise ("TNTCX"), located in Tuscaloosa, Alabama. On December 12, 2019, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination and harassment/hostile work environment on the bases of sex (male) and reprisal for engaging in prior protected EEO activity (reporting discrimination to management officials) when: 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 The complaint file submitted by the Agency failed to meet the requirements set forth in Appendix L of the Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (Aug. 5, 2015), as the entire PDF was not in searchable format. 2020002619 2 (a) In September 2019, the USACE Headquarters Senior Tribal Liaison / Tribal Nations Liaison (“TNL”), advised him that he had been replaced as the instructor, and when the replacement instructor became ill, TNL hired a contractor to conduct the training and advised Complainant that there was no "room" for him on the agenda or seating availability, (b) In August 2019, he was denied training because TNL used her position of authority to disapprove his training request at the division level, (c) In April 2019, TNL advised the Seminole Nation Tribe, Advisory Council of Historic Preservation not to utilize TNTCX for help scoping an ethnography, for which Complainant had been requested as the regional expert, (d) In January 2019, TNL advised him that she was removing him from the platform project for someone less emotionally involved, (e) In December 2018, Complainant’s supervisor (“S1”), who was the TNTCX Director, advised Complainant that TNL called and requested that he not hire Complainant, and that TNL said Complainant was a "a problem employee," (f) In October 2018, TNL told another senior USACE Tribal Liaison that she planned to decertify TNTCX, (g) In August 2018, TNL asked a management official at USACE Headquarters if Complainant had permission to attend a conference and stated "[Complainant] breaks the rules and is unprofessional, he has no business there," and made disparaging remarks regarding Complainant’s tattoo, (h) In May 2018, TNL undermined him professionally by promoting the services of a consultant instead of Complainant’s services during a conference, (i) Between April 17 and 19, 2018, during a visit to TNTCX, TNL became intoxicated at a social event and told the Albuquerque Tribal Liaison and the Mobile District Tribal Liaison that Complainant was a "cockblocker" when he refused to give her a ride home; TNL also reprimanded Complainant several times for interacting with USACE Tribal Liaison Community of Practice, (j) On March 1, 2018, TNL became hostile toward him after he informed her that her conduct at Bottle Creek Mound was unprofessional, where she called another employee a "House-bitch" and made Pilate stands, (k) On or about February 2, 2018, TNL made disparaging comments about white men and when he tried to change the subject, she stated, "I better be careful or [Complainant] will get offended again,” and, 2020002619 3 (l) November 2017 through January 2018, he declined to cooperate with TNL when, while S1 was on extended sick leave, she asked Complainant to support her in replacing S1 as the TNTCX Director, with someone external to USACE because she believed S1 was too old to hold the position of TNTCX Director. Complainant identifies two instances where he engaged in EEO activity that he alleges gave rise to reprisal: Between November 2017 and January 2018, while the S1 was on sick leave, Complainant reported TNL’s plans, which he believed were at least partially motivated by age discrimination, to replace S1 with one of her non-USACE associates, as alleged in Claim (l). The Albuquerque District Project Manager (“DPM”) Complainant notified agreed that replacing S1 as TNTCX Director would be inappropriate and S1 ultimately recovered and resumed working. Complainant states that after notifying the DPM, his relationship with TNL became “extremely strained.” When TNL visited TNTCX on January 29, 2018, she “made derogatory remarks” to Complainant and S1, and made the comments referenced in Claim (k). On March 1, 2018, Complainant engaged in protected EEO activity a second time while both he and TNL participated in a Tribal Consultation Meeting in Alabama. Colleagues and leadership from other district offices as well as tribal elders were present when TNL engaged in conduct that was culturally insensitive (i.e. acting in a manner that could potentially create a hostile work environment based on national origin in violation of Title VII), including the alleged actions referenced in Claim (j). Complainant informed Agency management, and was tasked with talking to TNL about how her conduct was perceived and the potential consequences. Complainant alleges that since that discussion, he has “been met with nothing but contempt and hostility by [TNL].” He elaborates that TNL went from supporting to opposing his projects and initiatives, and lacks “professional courtesy and decorum” when communicating with him. Complainant can “only assume these actions serve as her reprisal for speaking out against her discriminatory actions.” The Agency dismissed Complainant’s complaint failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency alternately dismissed Claims (b) through (i) for untimely contact with an EEO Counselor, pursuant to 29 C.F.R. § 1614.107(a)(2).3 ANALYSIS AND FINDINGS Timeliness In relevant part, 29 C.F.R. § 1614.107(a)(2) provides that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within 45 days of the 3 In its Opposition to Complainant’s Appeal, the Agency argues that Claims (c) through (l) are untimely pursuant to 29 C.F.R. § 1614.107(a)(2). 2020002619 4 date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the 45-day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. See Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012). Where, as here, there is an issue of timeliness, “[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness.” Guy v. Dep’t of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep’t of Def., EEOC Request No. 05920506 (Aug. 25, 1992)). In the instant case, Complainant initiated contact with an EEO Counselor on October 2, 2019. Claim (a) is timely, as it alleges discriminatory actions that occurred in September 2019. The alleged action in Claim (b) occurred on an unspecified date in August. As the Agency has not demonstrated otherwise, we will presume the alleged action in Claim (b) occurred on or after August 16, 2019, making it timely as well. Complainant has not provided an explanation for the delay in contacting an EEO Counselor with respect to Claims (c) through (l), which all occurred prior to 45 days prior to the October 2, 2019 first EEO contact (August 16, 2019). Therefore, Claims (c) through (l) were properly dismissed as untimely. Claims (a) and (b) were timely raised with an EEO Counselor pursuant to 29 C.F.R. § 1614.107(a)(2) and should not have been dismissed as untimely raised. Failure to State a Claim The regulation set forth under 29 C.F.R. § 1614.107(a)(1) provides 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. See Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). For claims of reprisal, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). Instead, claims based on statutory retaliation clauses are reviewed “with a broad view of coverage.” 2020002619 5 Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter… [C]omplainant or others from engaging in protected activity.” Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007), citing Carroll v. Dep’t of the Army, EEOC Request No. 05970939 (Apr. 4, 2000) and EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15. Claims (a) and (b) successfully allege a present harm or loss to a term, condition, or privilege of employment for which there is a remedy, and describe conduct by the Agency that is reasonably likely to deter Complainant or others from engaging in protected activity. In Claim (a) Complainant alleges he was twice deprived of the opportunity to conduct a training that was part of his job duties, and which he had been conducting for the past five years, in favor of a contractor. Claim (a) further alleges that Complainant was deprived of an opportunity to attend an Agency event where he had been scheduled to attend and participate. In Claim (b), Complainant alleges he was denied training that would help advance his career, even though it was initially approved. Claims (a) and (b) each state a claim of discrimination based on sex and reprisal pursuant to 29 C.F.R. § 1614.107(a)(1).4 Harassment/Hostile Work Environment In addition to raising claims of disparate treatment, Complainant also alleged a pattern of ongoing discriminatory harassment. The Supreme Court of the United States held that "[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filing period." EEOC Compliance Manual, Section 2, Threshold Issues al 2 - 75 (rev. July 21, 2005) referencing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). Therefore, when examining Complainant’s harassment claim, we will consider all of Complainant’s allegations together, even those that occurred more than 45 days before Complainant initiated EEO counseling. In determining whether a harassment complaint states a claim, the Commission has repeatedly examined whether a complainant's harassment claims, when considered together and assumed to be true, were sufficient to state a hostile or abusive work environment claim. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). However, we have found that allegations of a few isolated incidents of alleged harassment usually are usually not sufficient to state a viable harassment claim. See Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996), Banks v. 4 While we only addressed Complainant’s timely claims in this section, this Decision is not to be interpreted as affirming the Agency’s legal rationale in its dismissal of Complainant’s entire complaint for failure to state a claim. Assuming, arguendo, Complainant’s remaining claims were found timely, Claims (c) and (d) both allege a present harm or loss to a term, condition, or privilege of employment for which there is a remedy, so they state individual claims of discrimination based on sex and retaliation. Claims (e), (f), (g), (h) and (j) describe actions that are reasonably likely to deter EEO activity, so they state individual claims of reprisal. 2020002619 6 Dep’t of Health and Human Servs., EEOC Request No. 05940481 (Feb. 16, 1995). When reviewing a claim of harassment/hostile work environment, an agency should not ignore the "pattern aspect" of a complainant's claims and define the issues in a piecemeal manner where an analogous theme unites the matter complained of. Henderson v. Dep’t of the Army, EEOC Appeal No. 0120132221 (Feb. 11, 2014) citing Meaney v. Dep't of the Treasury, EEOC Request No. 05940169 (Nov. 3, 1994). Viewed together, Complainant’s allegations in Claims (a) through (j) reveal a pattern, where one management official, TNL, who appears to have significant influence over Complainant’s office, has regularly made targeted attempts to undermine Complainant’s career and professional standing within the Agency following his EEO activity on March 1, 2018. In Claim (a) TNL removed Complainant’s training duties and denied his participation or attendance to an Agency event and in Claim (b), TNL allegedly caused his career-advancing training to be canceled. In Claims (c) and (d) TNL allegedly took direct and indirect actions to decrease Complainant’s work assignments, and role in working with other district offices and tribes. In Claim (e) TNL allegedly attempted to prevent Complainant from obtaining a promotion by disparaging him to S1 and suggesting that S1 not select him for Deputy Director. In Claim (f) TNL allegedly made statements that she would decertify TNTCX, which discouraged clients from working with TNTCX (and by extension, Complainant), and if true would result in the abolishment of Complainant’s position. In Claim (g) TNL allegedly made disparaging remarks about Complainant as an employee to Agency leadership and discouraged his inclusion in Agency events. In Claim (h) TNL attended an Agency event where Complainant was seeking work with other district offices and clients, and allegedly undermined his efforts by recommending a consultant for the same work. Claim (i) describes an isolated incident of TNL acting unprofessionally rather than an attempt to undermine Complainant. Similarly, in Claim (j), the allegation that TNL “became hostile” referred to TNL becoming unprofessional in her communications with Complainant going forward and no longer supporting his projects, which she previously supported. While an isolated incident and an ongoing unprofessional communication style typically would not rise to the level of severity and pervasiveness required to state a claim of harassment/hostile work environment, we find it appropriate to include Claims (i) and (j) as part of the pattern of harassment established in Claims (a) though (h). Specifically, we note that Claims (i) and (j) occurred shortly after Complainant engaged in the March 1, 2018 EEO activity motivating the alleged reprisal, and considered in context with Claims (a) and (h), which Complainant alleges caused him ongoing fear for his job, we find it appropriate to include them as part of the overall harassment/hostile work environment claim. Claims (k) and (l) both arise from Complainant’s protected EEO activity between November 2017 and January 2018. Although TNL’s comment in Claim (k) references one of Complainant’s protected classes, and appears intended to deter him from engaging in EEO activity, Claim (k) appears to be an isolated incident. 2020002619 7 Regarding Claim (l), Complainant recounts that TNL put him in an awkward, stressful position by complementing him at S1’s expense (particularly with respect to age) and pressuring him to undermine S1. Though both name TNL as the responsible management official, we do not find Claims (k) and (l) are part of the pattern of harassment described in Claims (a) through (j). On their own, Claims (k) and (l) do not allege conduct sufficiently severe and pervasive to state a claim of harassment. Alternately, Claims (k) and (l) are untimely pursuant to 29 C.F.R. § 1614.107(a)(2). We find Claims (a), (b), (c), (d), (e), (f), (g), (h), (i), and (j) state an actionable claim of harassment/hostile work environment, given that at least one of the claims was timely raised with an EEO Counselor, and, when taken together, the claims allege a pattern of harassment. See Cervantes v. United States Postal Serv., EEOC Request No. 05930303 (Nov.12, 1993). “Like and Related” Allegation Raised on Appeal The regulation set forth al 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which raises a matter that has not been brought to the attention of an EEO Counselor, and is not like or related to a matter on which the complainant has received counseling. A later claim or complaint is "like or related" to the original complaint if the later claim or compliant adds to or clarifies the original complaint and could have reasonably been expected to grow out of the original complaint during the investigation. See Hurlocker v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120141346 (Jun. 27, 2014) referencing Scher v. United States Postal Serv., EEOC Request No. 05940702 (May 30, 1995), Calhoun v. United States Postal Serv., EEOC Request No. 05891068 (Mar. 8, 1990). In his February 24, 2020 appeal brief, Complainant stated, “[a]s I write this appeal brief, [TNL] has yet again excluded me from my training position at the USACE Tribal Nations Consultation training to be held in Jacksonville District.” Based on the pattern of discriminatory actions detailed in Complainant’s harassment complaint, we find Complainant’s statement is an attempt to amend his complaint with a like or related claim. As we previously determined for the same action alleged in Claim (a), Complainant’s new allegation states both an individual claim and is part of his overall harassment complaint. CONCLUSION Accordingly, the Agency's final decision dismissing Claims (k) and (l) is AFFIRMED, and the Agency’s dismissal of Claims (a), (b), (c), (d), (e), (f), (g), (h), (i) and (j) is REVERSED. The complaint is hereby REMANDED to the Agency for further processing in accordance with this decision and the ORDER below. 2020002619 8 ORDER (E0618) 1. The Agency shall amend Complainant’s complaint within thirty (30) calendar days of the date this Decision was issued to include the “like and related” allegation he raised on appeal. The Agency shall confirm that it made the amendment in its letter of acknowledgement referenced in Part 4 of this Order. 2. In accordance with Part 4 of this Order, the Agency shall process Claims (a), (b) and the new claim referenced in Part 1 of this Order, as individual disparate treatment complaints of sex discrimination and reprisal. 3. In accordance with Part 4 of this Order, the Agency shall process Claims (a), (b), (c), (d), (e), (f), (g), (h), (i), (j) and the new claim referenced in Part 1 of this Order as a single claim of harassment. 4. The Agency shall 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. 5. 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. 2020002619 9 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 C.F.R. § 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. 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. 2020002619 10 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 21, 2020 Date