[Redacted], Ronny S., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Mar 3, 2022

Appeal No. 2022000394 (E.E.O.C. Mar. 3, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ronny S.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022000394 Agency No. ARBENNING21AUG02587 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated October 4, 2021, dismissing a formal complaint alleging 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 worked as a Health System Specialist, GS-12, at the Agency’s Martin Army Community Hospital Surgical Services Service Line in Fort Benning, Georgia. On August 26, 2021, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. On September 29, 2021, Complainant filed a formal EEO complaint alleging he was unlawfully retaliated for engaging in activity protected under Title VII 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. 2022000394 2 a. on or about May 2021, the Assistant Deputy Commander for Surgical Services gave him a “1” (an unsuccessful rating) on his 2020-2021 Performance Appraisal; and b. on August 11, 2021, the Assistant Deputy Commander for Surgical Services issued him two Letters of Warning (dated July 9 and 14, 2021). On October 4, 2021, the Agency issued a final decision dismissing the formal complaint on two grounds. First, the Agency dismissed the formal complaint for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1), finding there was no evidence that Complainant engaged in prior protected activity, so he was unable to support his retaliation claim. Second, the Agency also dismissed claim (a) for untimely EEO counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined that Complainant’s initial EEO Counselor contact was on August 26, 2021, which it found to beyond the regulatory 45-day limitation period from the May 2021 performance appraisal. The instant appeal followed. ANALYSIS AND FINDINGS The regulations set forth at 29 C.F.R. §§ 1614.103 and 1614.106 require an Agency to accept a complaint from an aggrieved employee or applicant who believes that he has been discriminated against because of race, color, religion, sex, national origin, age, disabling condition, or reprisal for prior protected activities. See also, Odoski v. Dep’t of Energy, EEOC Appeal No. 0119901496 (Apr. 16, 1990). Pursuant to 29 C.F.R. § 1614.107(a)(1), an agency may dismiss a complaint that fails to state such a claim. Here, the Agency improperly dismissed the formal complaint in its entirety for failure to state a claim, asserting Complainant did not raise a covered basis of alleged discrimination in his complaint. Contrary to the Agency’s assertion, however, the formal complaint reflects that Complainant checked “reprisal” as the basis of his claims in box 8 of his formal complaint. Complainant further explained in box 10 that he engaged in oppositional activity which he believes was protected activity under the anti-discrimination statutes. Specifically, Complainant stated that, in May 2021, he complained to the Agency’s Labor Management Employee Relations office about the performance appraisal he received earlier in the month. Complainant asserts that, at the time, he claimed that the evaluation he received was baseless and discriminatory. In his formal complaint, Complainant asserted that he was subjected to unlawful retaliation when, on August 11, 2021, he received the two Letters of Warning “specifically admonishing [him] for protesting the unfair rating.” The Agency’s dismissal decision, based on its finding that Complainant did not engage in protected oppositional activity, improperly addresses the merits of Complainant’s retaliation claim without an investigation as required by the regulations and is irrelevant to the procedural issue of whether he has stated a justiciable claim under Title VII. See Osborne v. Department of 2022000394 3 the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United States Postal Service, EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642 (August 15, 1991). Therefore, we conclude that the Agency erred in dismissing the retaliation claim concerning the two letters of warning (claim (b)). However, because a fair reading of the complaint and related EEO counseling report shows that Complainant is asserting only retaliation for claim (a) as well, this claim was properly dismissed. Complainant is alleging that he was being retaliated against for protesting his performance appraisal. But he does not allege that he engaged in any other protected activity prior to receiving the performance appraisal for which he could have been retaliated against. Without such a claim, or an assertion of discrimination on another basis, we must affirm the Agency’s decision to dismiss claim (a) for failure to state a viable claim. Because we are affirming the dismissal of claim (a) for failure to state a claim, it is not necessary for us to address whether or not this claim was timely raised. CONCLUSION While affirming the Agency’s dismissal of claim (a), we reverse the Agency’s dismissal of claim (b) and REMAND this matter to the Agency for further processing in accordance with the Order below. ORDER (E0618) The Agency is ordered to process the remanded claims (claim (b) - letters of warning) 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. 2022000394 4 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 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2022000394 5 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). 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. 2022000394 6 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 March 3, 2022 Date