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

Equal Employment Opportunity Commission

Aug 20, 2020

2020000881 (E.E.O.C. Aug. 20, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alejandro B.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 2020000881 Agency No. DON196220403603 DECISION Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from the Agency's September 18, 2019, 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., Section 501 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as the Director, Security & Emergency Services, GS-14, at the Marine Corps Logistics Base ("MCLB") in Barstow, California. On September 5, 2019, Complainant filed a formal complaint alleging that the Agency subjected him to harassment on the bases of sex (male), physical disability (100% disabled veteran), age (64), and reprisal for prior protected EEO activity when: a. On July 9, 2019, Complainant received a memo from the Police Chief stating that the Commanding Officer (“CO”) said he believed Complainant would retire in 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. 2020000881 2 August, or he would reassign Complainant to the Mission Assurance Director (“MAD”) position. b. On June 27, 2019, Complainant received an email from CO, outlining his realignment plan. c. On June 21, 2019, Complainant received a statement from the Base Supply Officer stating CO said that Complainant had commented that he planned to retire soon, and that he (CO) would facilitate that retirement, it was time for Complainant to move on, and that if Complainant did not retire S1 would offer him the MAD position. On July 9, 2019, Complainant received a “Memo for the Record,” dated May 17, 2019, from the retired Police Chief, recounting a May 16, 2019 meeting with CO prior to his retirement, where they discussed potential replacements and CO’s plans for MCLB. According to the Police Chief, CO said that Complainant informed him that he intended to retire in August 2019. If not, CO said he would reassign Complainant to the position of Mission Assurance Director (“MAD”). The Police Chief told CO that he was skeptical Complainant would actually retire, and that Complainant probably would not like the reassignment. CO responded, “well perhaps [Complainant] would retire instead of taking the reassignment.” On June 20, 2019, CO called the Base Supply Officer into a meeting and informed him that he would not assign him to the role of the Director, S-4, Maintenance Management Officer (vacated by the new police chief), as previously discussed. In a written account of the interaction the Base Supply Officer states that CO indicated that he intended to fill all civilian director positions at MCLB with active duty military, and stated, “if [Complainant] chooses not to retire that he will offer him the [MAD position] which is a lower graded position.” On June 27, 2019, CO emailed Complainant, stating his concerns that the MAD position, which is critical to maintaining operations during a crisis has been vacant and that there is “much work to be done” in the position. He suggests that “when we have a well seated and competent Police Chief and Fire Chief, gapping the SES Director billet to fill the MAD position may be prudent.” He asks to meet to discuss the “pros/cons and trade-offs.” According to the EEO Counselor’s Report, CO confirmed that he intended to reassign Complainant to the MAD position regardless of his plans to retire, based on operational needs, and Complainant’s knowledge and tenure with the MCLB. CO also confirmed that Complainant’s paygrade would not be lowered as a result of the reassignment. Complainant argues that Claims a, b, and c all indicate that CO intends to reassign him to MAD as a way to force him to retire. Complainant also contends that CO has no intention of gapping his SES Director position, and will backfill it once he reassigns Complainant to MAD. 2020000881 3 The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(5), finding Complainant’s complaint described a proposed personnel action. The instant appeal followed. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(5) provides, in part, that an agency shall dismiss a complaint that alleges that a proposal to take a personnel action, or other preliminary step to taking a personnel action, is discriminatory, unless the complaint alleges that the proposal or preliminary step is retaliatory. Here, claims a, b, and c all refer to the same proposed personnel action - reassignment to the MAD position - and there is no evidence that the Agency took any concrete action to effectuate this reassignment. Therefore, dismissal under 29 C.F.R. § 1614.107(a)(5) is proper, except for Complainant’s allegation of unlawful retaliation for engaging in protected EEO activity. As such we modify the Agency’s dismissal decision to remand his retaliation claim for investigation and further processing. New Issues Raised on Appeal On appeal, Complainant raises new claims of harassment, discrimination, and retaliation by CO, that occurred after he filed his formal complaint. As the allegations were not included in the complaint before us, they will not be adjudicated in this decision. Hall v. United States Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003). If Complainant wishes to pursue these new claims in an EEO complaint, then he must contact an EEO Counselor pursuant to 29 C.F.R. § 1614.105. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED in part and REVERSED in part. Complainant’s retaliation claim is REMANDED to the Agency for further processing pursuant to the following Order. ORDER (E1016) The Agency is ordered to process the remanded claims (claims 1-3 on retaliation only) 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. 2020000881 4 A copy of the Agency’s letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618) 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. 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; 2020000881 5 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 (T0900) 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. 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. 2020000881 6 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 August 20, 2020 Date