[Redacted], Jake H., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Mar 2, 2022

Appeal No. 2020005225 (E.E.O.C. Mar. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jake H.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2020005225 Hearing No. 480-2019-00799X Agency No. DON 19-60530-02560 DECISION On August 5, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 6, 2020, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an AV-8B Flight Test Coordinator/Aircraft Coordinator, DS-5, for the Agency’s Naval Air Warfare Center Weapons Division in China Lake, California. On March 20, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected activity when: 1. From on or about October 2018 to the present, the Agency targeted him “for discovery in his spouse[’]s appeals before the Merit Systems 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. 2020005225 2 Protection Board” (MSPB) in an effort to “weaponize him against her and his representative of record”; 2. On or about October 17, 2018, the Agency’s attorney contacted him at his work e-mail which included a “notice to appear for your deposition in the matter of [his spouse’s claim against the Agency] and made the statement that “[a]s a federal employee you are required to participate in this process,” which he asserts is erroneous and an attempt to threaten him by implying that he may lose his job if he fails to cooperate; 3. On or about October 22, 2018, the Agency’s attorney attempted to obtain all communications between his wife and him regarding pending appeals; and, 4. From on or about October 22, 2018 to the present, the Agency’s attorney has “continue[d] to pursue” him regarding communications with his wife despite having informed the Agency on October 22, 2018 via declaration that he had no such information to provide. Complainant and his wife are both employees of the Agency. Complainant’s spouse is currently involved in an appeal before the MSPB for alleged whistleblower reprisal (“MSPB Appeal”). See Report of Investigation (ROI) at 24. In connection with the MSPB Appeal, the Agency’s attorney sent Complainant an email on October 17, 2018, titled “Notice of Deposition”, which informed Complainant he would be deposed and stated “[a]s a federal employee you are required to participate in this process.” See ROI at 26. On October 22, 2018, the Agency’s attorney sent Complainant another e-mail, titled “Litigation Hold Notice”, which directed Complainant to retain all evidence relevant to the MSPB Appeal. See ROI at 28-29. On October 23, 2018, Complainant filed a motion for a protective order with the MSPB, challenging both the Notice of Deposition and the Litigation Hold Notice, arguing that the Agency’s use of the discovery process was retaliatory harassment. See ROI at 237-40. An MSPB Administrative Judge denied the motion on October 25, 2018, stating that the Agency’s discovery requests were a reasonable means of ascertaining if Complainant had any relevant information regarding his spouse’s appeal and that Complainant’s assertion that the Agency’s requests were retaliatory was “purely speculative.” See ROI at 266-70. Complainant also filed his own appeal before the MSPB alleging whistleblower reprisal and discrimination, which the MSPB dismissed for lack of jurisdiction on November 15, 2018. Complainant filed a petition seeking review of the MSPB’s dismissal to the EEOC’s Office of Federal Operations (OFO), which remanded the matter to the Agency to process the portion of Complainant’s complaint which raised an allegation of employment discrimination. See Jake H. v. Dep’t of the Navy, EEOC Petition No. 2019000972 (Nov. 29, 2018). 2020005225 3 Thereafter, Complainant filed the instant EEO complaint alleging retaliatory harassment for his prior protected EEO activity. He identified his prior protected activity as providing affidavits, and other information, to the Agency in support of his spouse’s claim of disability discrimination, which resulted in a settlement agreement dated March 1, 2006. See ROI at 11. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing, but subsequently withdrew his request. Consequently, the Agency issued a final decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). Finding that none of Complainant’s claims constituted discrete acts of discrimination, the Agency considered whether all the claims together established a hostile work environment. The Agency concluded that Complainant failed to show he was subjected to a hostile work environment because there was no evidence that the Agency’s actions were due to his protected activity. Moreover, reasoned the Agency, the alleged actions were not sufficiently severe or pervasive to create a hostile environment. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant argues that the Agency did not properly process or investigate his claims as required under the Commission’s regulations. Complainant asserts the FAD also did not properly address all his claims and again challenges the Agency’s discovery requests in his spouse’s MSPB appeal as improper. In response, the Agency contends it already responded to Complainant’s concerns over the processing of his EEO complaint and determined that the complaint was properly handled. Further, the Agency maintains that Complainant failed to provide any evidence to support his claims of harassment and that the actions by the Agency’s attorney could not constitute harassment because he was simply performing his legitimate duties. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”). 2020005225 4 As an initial matter, to the extent Complainant challenges the Agency’s processing of his EEO complaint, Complainant has not explained in what way the Agency’s processing of the complaint did not comply with the Commission’s regulations. In addition, the record indicates that the Agency did, in fact, conduct an inquiry in response to Complainant’s concerns and concluded that the complaint was properly processed. See ROI at 515-20. Therefore, the record does not establish that the Agency improperly processed his EEO complaint. A prima facie case of harassment is established by showing that: (1) Complainant belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Reyes-Vanegas v. Equal Empl. Opp. Comm’n, EEOC Appeal No. 01A34154 (Jan. 3, 2005); Ornelas v. Dep’t. of Justice, EEOC Appeal No. 01995301 (Sept. 26, 2000); McLeod v. Social Security Admin., EEOC Appeal No. 01963810 (Aug. 5, 1999) citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Factors to consider in determining whether a hostile or abusive environment has been established include: (1) frequency of conduct; (2) severity of the conduct; (3) whether the conduct was physically threatening or humiliating rather than a mere offensive utterance; and (4) whether the conduct unreasonably interferes with an employee’s work performance; whether the alleged harasser was a co-worker or supervisor; and whether others joined in perpetrating the harassment. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993); Steele v. General Services Admin., EEOC Appeal No. 01933171 (July 15, 1994) citing EEOC Policy Guidance on Current Issues of Sexual Harassment (May 19, 1990), p. 14. Reprisal claims are considered with a broad view of coverage. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 ((2006); see also, Carroll v. Dep’t of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Id. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. Id.; see also, Carroll, supra. Here, we find that Complainant failed to establish a prima facie case of retaliatory harassment. Complainant has not provided any evidence to support his assertion that the actions by the Agency’s attorney were due to his prior protected EEO activity. To the extent Complainant is alleging reprisal for participation in whistleblower proceedings, the Commission has previously held that whistleblower activities are generally outside the purview of the EEO complaint process. See Giannu v. Dep’t of Housing and Urban Development, EEOC Request No. 05880911 (Feb. 13, 1989). Additionally, we note that Complainant’s only prior protected EEO activity appears to have been his participation in his spouse’s disability discrimination claim, which was settled in 2006, more than a decade prior to the incidents at issue here. Moreover, there is no evidence that the Agency’s attorney acted in a way which was intended to harass, annoy, or intimidate Complainant from participating in any protected EEO activity. 2020005225 5 The Agency attorney’s actions were reasonable and taken in the course of discharging his duties as the Agency’s legal representative. We further find that the incidents are not sufficiently severe or pervasive to constitute a hostile work environment. See Christopher v. Dep’t of the Treasury, EEOC Appeal No. 0120102317 (Sept. 23, 2011). Finally, to the extent Complainant reiterates his challenges to the propriety of the Agency’s discovery requests, this constitutes a collateral attack on the MSPB discovery process. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. A collateral attack involves a challenge to another forum’s proceeding, i.e., the grievance process, the EEO process in a separate case, the unemployment compensation process, the workers’ compensation process, the tort claims process, and so forth. Lau v. National Credit Union Administration, EEOC Request No. 05950037 (March 18, 1996). Therefore, we find that the Agency properly concluded that Complainant did not establish she was subjected to a hostile work environment. 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 decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). 2020005225 6 Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020005225 7 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 March 2, 2022 Date