0120180179
01-12-2018
Bill A.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bill A.,1
Complainant,
v.
Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120180179
Agency No. DON176339402116
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 15, 2017, 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 was employed by the Agency as an Administrative Tech Specialist at the Agency's Product Support Office facility in Port Hueneme, California.
On May 9, 2017, Complainant made contact with an EEO Counselor. On August 16, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to a hostile work environment and discrimination on the bases of race ("Hispanic"), national origin (Hispanic / Puerto Rico), sex (male) and reprisal for prior protected EEO activity under Title VII. The Agency listed the issues as alleging discrimination, when:
1. On August 2, 2017, during mediation, Complainant requested that his branch manager remove the expectation letter that the branch manager issued to Complainant from Complainant's record and the branch manager accused Complainant of placing funds at risk, along with other false accusations;
2. On June 16, 2017, Complainant's branch manager coerced him into signing the expectation letter after Complainant informed him several times that he did not agree with the statements in the letter;
3. On June 12, 2017, Complainant received an updated expectation letter with two contract tasks removed and continued to coerce him into signing the letter again;
4. On June 5, 2017, after returning from vacation, Complainant's branch manager sent a negative email stating Complainant missed a meeting and asked to see him. Complainant informed him the meeting was cancelled and Complainant had already communicated with the appropriate personnel;
5. On May 22, 2017, Complainant's branch manager coerced him into signing an expectation letter;
6. On May 12, 2017, Complainant's branch manager coerced him into signing an expectation letter;
7. On May 9, 2017, Complainant's branch manager informed him incorrectly that a task representative had complained about him;
8. On May 9, 2017, after Complainant discussed his concerns with the Chief Logistician of the Product Support Office, Complainant's branch manager changed the title of his weekly meeting from Synch UP to Performance Expectations meeting. Complainant was issued a letter of expectations with false accusations; and
9. On April 24, 2017, Complainant's branch supervisor questioned him as to why Complainant had to complete a market research for a contract.
Agency Decision
The Agency issued a final decision dismissing the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency dismissed claim 1 as alleging dissatisfaction with the EEO process. Next, the Agency reasoned that Complainant's allegation of reprisal should be dismissed because Complainant lacked any prior protected activity and had not raised the reprisal issue during EEO counseling. The remainder of the complaint was dismissed for "failure to state a claim resulting in a tangible harm to a term, condition or privilege of employment." The Agency also found, with regard to the above referenced claims, that "these examples are not discriminatory actions covered under Title VII." This appeal followed.
Complainant did not submit a brief to support his appeal. Instead, he offered 32 pages of documentation, including work-related emails, a Letter of Expectation, and the EEO Counselor's Report, to support his claims that he was subjected to a hostile work environment and adverse employment actions, including being given a heavier work load than the work load given to non-Hispanics.
In response, the Agency asserts that Complainant lacks standing to file an appeal because he was not aggrieved. The Agency explained its reasoning. The Agency stated that none of the actions addressed a direct and personal deprivation. They "merely express a general concern with respect to complainant's boss's intentions" and stated that "an expectation letter" is "a preliminary step to taking a personnel action."
ANALYSIS AND FINDINGS
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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, disability, genetic information, or retaliation. See 29 C.F.R. 1614.103(a) and 1614.106(a).
In this case, a fair reading of the complaint in conjunction with the related EEO counseling report shows that Complainant alleged that his supervisor subjected him to a hostile work environment and unlawful discrimination on the basis of his gender (Male), and National Origin (Hispanic). In addition, he added retaliation as a basis to his complaint regarding claims for incidents that occurred after his contact with an EEO counselor on May 9, 2017.
Accordingly, we construe Complainant as alleging claims of national origin and sex discrimination (Hispanic male) and retaliation that were part of an ongoing pattern of harassment and disparate treatment that started two years prior to his EEO contact and continued, with the last incident occurring on or around August 2, 2017. The record reveals that he sufficiently alleged that he had been subjected to a series of related incidents of disparate treatment based on his national origin (Hispanic), sex (male) and for the incidents after May 9, 2017, on the basis of retaliation.
Moreover, he alleges a continuing violation and specifically that the Agency imposed on him a heavier workload and higher demands because he was a Hispanic male, subjected to repeated harassment and threats, denied him a permanent office and the assistance provided to others who were not Hispanic. Complainant stated that since February 27, 2017 and ongoing, he was not given a permanent cubicle or working space after two years, while other new hires were provided permanent workspace. In short, he claims that the Agency gave preferential treatment to non-Hispanics and those who had no prior EEO activity. This is sufficient to state claims under Title VII.
The Agency erroneously failed to even consider or recognize his Title VII claims that he was issued the repeated Letters of Expectation and a heavier work load because he was a Hispanic male. We find that the record supports our finding that he stated sufficient Title VII claims.
Complainant has shown an injury or harm 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 (April 21, 1994). Upon review, the Commission finds that Complainant's complaint was improperly dismissed.
CONCLUSION
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint. We REMAND the matter to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E1016)
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.
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 (K0617)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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 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. 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
January 12, 2018
__________________
Date
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.
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