Augustine S.,1 Complainant,v.Ryan McCarthy, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 27, 2019

2019002766 (E.E.O.C. Sep. 27, 2019)

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

Augustine S.,1
Complainant,

v.

Ryan McCarthy,
Acting Secretary,
Department of the Army,
Agency.

Appeal No. 2019002766

Agency No. ARTACOM18OCT03883

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision, dated December 20, 2019, dismissing 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Senior Procurement
Counsel at the Agency’s Sierra Army Depot facility in San Antonio, Texas.

On October 16, 2018, Complainant filed a formal complaint alleging that the Agency subjected
him to unlawful retaliation for prior protected EEO activity under Title VII when:

1. on June 9, 2018, Complainant learned that, in December of 2016, the former
“TACOM Commanding General,” the former “SIAD Commander,” and the
“TACOM Chief Counsel” authorized “the TACOM G2” to enter derogatory
information about Complainant into the Joint Personnel Adjudication System
(JPAS) system;

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.
2019002766

2

2. starting in April 2017 and continuing until October 20, 2017, unidentified
TACOM personnel delayed for six months the forwarding of a letter to
Complainant, that required Complainant to provide “specific information by a
certain date” to the Department of Defense Consolidated Adjudications Facility
(CAF); and

3. management officials on an ongoing basis have manipulated the defense security
clearance process and took other actions against him, in order to retaliate against
Complainant for his support of a female employee who reported sexual assaults
against her, which the Agency refused to investigate.

As background, the pertinent record reveals that Complainant had participated previously in the
EEO process. Complainant had contacted the EEO Office at “TACOM,” to “expose rampant
discrimination at the Sierra Army Depot” (which included an alleged sexual assault against a
female employee). He claimed that, shortly after he exposed the “rampant discrimination,” he
was subjected to a directed reassignment, management officials entered false and derogatory
information into the JPAS against him, he was placed under investigation and ordered to
“telework.” He also alleged, that, for over six months, SIAD employees delayed forwarding the
letter from the investigating entity (DODCAF) to Complainant, which required Complainant’s
response within the deadline indicated in the letter that was not provided to Complainant.2
Complainant believed that the normal protocol was not followed intentionally “in the hope that
DODCAF would suspend Complainant’s security clearance for failure to respond to the deadline
indicated in that letter.”

DODCAF submitted a Freedom of Information Act (FOIA) request to the Agency, on behalf of
Complainant, after Complainant requested further information regarding the accusations made
against him. Complainant averred that it was not until the FOIA request was filed on his behalf
that requested that the Agency produce the documents that supported the JPAS entry, that
Complainant was made aware of the reprisal.

On June 9, 2018, Complainant received the response from the Agency on the investigating unit’s
(DODCAF) FOIA request. It was within those documents, provided to Complainant on or about
June 9, 2018, that Complainant became aware of the two purportedly false allegations, at issue,
that were made against Complainant and then that Complainant became aware of the “false and
misleading information used to support the JPAS entry by the same individuals “whose
discriminatory conduct Complainant had disclosed” to the SIAD EEO Office in the Summer of
2016.”

2 On appeal, Complainant stated that “this is how these employees treat federal employees who
oppose their discriminatory conduct.” In addition, he stated that “more than one have since been
indicted by a grand jury (see US Attorney in San Francisco’s indictment of SIAD employees in
October 2017), removed from federal service or resigned in disgrace.”
2019002766

3
On December 20, 2019, the Agency issued a final decision dismissing the complaint. The
Agency concluded that Complainant did not contact an EEO counselor until July 11, 2018,
which the Agency determined was beyond the 45-day requirement for EEO contact. The Agency
reasoned that, when Complainant received a CAF letter seeking information on April 20, 2018,
he was placed on clear notice that derogatory information about him had been reported to the
CAF through the JPAS system. The Agency also reasoned that Complainant received the delayed
CAF letter on October 20, 2017, and was aware, as of that date, that the letter addressed to him
had been delayed in delivery since April 2017. In addition, the Agency found that, to the extent
that Complainant was alleging retaliation for reporting “rampant, fraud, waste and abuse at
SIAD,” “separate and apart from alleging reprisal for [his] prior protected EEO activity, such
actions are not covered by the federal anti- discrimination laws.”

This appeal followed. On appeal, Complainant stated that the dismissal was unwarranted because
he did not become aware of the discriminatory actions until June 9, 2018, when he received the
Agency’s response and the documents that the Agency provided to support the management’s
negative JPAS entry. Complainant asserts that it was only through the receipt of those
documents, as part of a FOIA response, that Complainant became aware of the two erroneous
allegations made against him by the two management officials whom Complainant had accused
of discrimination and wrongdoing. He also asserted that that he was subjected to continuing
surreptitious and retaliatory actions by the SIAD since 2015.

ANALYSIS AND FINDINGS

We find that, in December 2016 and in April 2017, Complainant did not know, and had no way
of knowing, of the entry of derogatory information into the Joint Personnel Adjudication System
(JPAS) made by the “LTC, MG” and the TACCOM Commanding General. The record supports
Complainant’s assertion that he was not aware of the JPAS entry, or the reason supporting the
JPAS entry, until he reviewed the documents that purportedly supported the JPAS entry that
Complaint realized that none of those documents supported the issues upon which DODCAF
was investigating him. We further find that the Agency failed to meet its burden to show that
Complainant’s EEO contact was untimely.

Further, we find that Complainant was alleging retaliation for his own participation in EEO
activity, not just whistleblowing.

Upon review, the Commission finds that Complainant's complaint was improperly dismissed
pursuant to 29 C.F.R. § 1614.107(a)(5) for failure to contact an EEO counselor with 45 days of
the date of the alleged discrimination.

CONCLUSION

Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint.
The complaint is hereby REMANDED to the Agency for further processing in accordance with
this decision and the Order below.
2019002766

4
ORDER (E0618)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108.
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.
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.
2019002766

5
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 tends 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. 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.
2019002766

6
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