U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Carol K.,1
Complainant,
v.
Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
and
Richard V. Spencer,
Secretary,
Department of the Navy,
Agencies.
Appeal No. 2019004395
Agency No. 9X1M1900297
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated June 3, 2019, dismissing a formal
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
During the period at issue, Complainant worked for the Department of Navy as a Property
Management and UID Lead, GS-14, at the Patuxent River Naval Air Station, Maryland.
On April 18, 2019, Complainant filed a formal complaint alleging that she was subjected to a
ongoing hostile work environment in retaliation for prior protected EEO activity 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.
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a. on January 16, 2019, another PMO Functional Lead for the F-35 program (“the Lead”)
accused Complainant of not providing a status update of completion for User Acceptance
Testing;
b. on or about January 9, 2019, the Lead accused her of not adhering to the assigned
deadlines for a Block by Contracts Letter;
c. on January 7, 2019, the Lead provided an unreasonable timeline to the Block by
Contracts Letter to allow for review by the contracts Legal Office and submission to the
Prime;
d. on January 7, 2019, the Lead accused Complainant of signing up to complete a user
acceptance testing on a tool for Lockheed Martin;
e. on or about December 14, 2018, the Lead accused Complainant of not complying with
his direction of tasking for the Block by Contracts Letter; and
f. on or about December 10, 2018 until the present, the Lead sent Complainant a number of
hostile and intimidating emails containing unreasonable timelines and false accusations.
The record in this matter indicates that both Complainant, an employee of the Department of the
Navy, and the Lead, an employee of the Department of the Air Force, worked as members of the
F-35 Lightning II Joint Program Office also known as the Joint Strike Fighter Program (JSF).
The record reflects that the JSF is an enterprise of the Department of Defense responsible for
developing and acquiring the F-35, a next generation strike aircraft weapon system for the Navy,
Air Force, Marines and allied nations. The JSF is comprised of military members and civilian
employees from multiple federal agencies including both the Department of the Air Force and
the Department of the Navy.
In its final decision, the Agency, the Department of the Air Force, dismissed the instant formal
complaint in its entirety. The Agency determined that Complainant was an employee of the
Department of the Navy, and that she therefore had no standing to raise discrimination claims
with the Air Force. The Agency further determined that the Department of the Navy, as
Complainant’s employer, not the Department of Air Force, would be responsible for any
settlement or judgment resulting from Complainant’s allegations of discrimination.
This appeal followed.
On appeal, Complainant argues that Agency’s determination that it was not involved in the
alleged discrimination is inconsistent with the fact that the named Lead, an employee of the Air
Force, is alleged to have fostered the discriminatory hostile work environment. Moreover,
Complainant contends that as the employer of the alleged harasser, the Air Force is responsible
for the harassing conduct of its employees and is obligated to take corrective action upon
learning of the alleged discriminatory conduct of its employees.
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ANALYSIS AND FINDINGS
Harassment of an employee that would not occur but for the employee's race, color, sex, national
origin, age, disability, religion or prior EEO activity is unlawful if it is sufficiently patterned or
pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing
McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on
Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994).
In a case like the instant one, of co-worker harassment, an agency is responsible for acts of
harassment in the workplace where the Agency (or its agents) knew or should have known of the
conduct, unless it can be shown that it took immediate and appropriate corrective action. See
Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No.
915.002 (June 18, 1999). The agency can raise an affirmative defense when it shows that it took
immediate and appropriate corrective action. Id. What is appropriate remedial action will
necessarily depend on the particular facts of the case, such as the severity and persistence of the
harassment and the effectiveness of any initial remedial steps. See Taylor v. Department of the
Air Force, EEOC Request No. 05920194 (July 8, 1992).
In its opposition to the instant appeal, the Department of the Air Force concludes, without having
investigated the matter, that Complainant’s employing agency alone, the Department of the
Navy, was best situated to have learned of the alleged misconduct of the Air Force employee.
The Air Force further concluded after “consulting” with Air Force attorneys and with “various
levels of command within the Navy” that the Navy would be fiscally responsible for any
settlement or judgment resulting from these allegations.
This claim involves a hostile work environment alleged to have been created by an Air Force
employee. Liability for the discriminatory harassment must be determined by examining the
actions and decisions made by management at both the Department of the Air Force and the
Department of the Navy. Furthermore, implementation of any remedy to be provided in this case
might necessarily require the participation of both the Air Force and the Navy. It is the policy of
the Commission that, when two agencies bear joint responsibility for an act of alleged
discrimination, both agencies are proper respondents and the complaint must be jointly
processed. See Velez v. Department of Veterans Affairs & Department of the Air Force, EEOC
Appeal No. 01961480 (February 6, 1997). See also, Fauntroy v. Department of the Treasury,
EEOC Appeal No. 01980259 (finding that Department of Treasury employee allegedly harassed
by security guard employed by General Services Administration should be jointly processed by
both agencies). This policy ensures that all agencies that are indispensable parties to the
adjudication of a complaint are joined. Therefore, we will join the Department of Navy, as a
party to this matter and require it to participate in the further adjudication of the instant
complaint.
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CONCLUSION
Accordingly, the Department of the Air Force’s decision dismissing the instant formal complaint
is REVERSED. The Department of the Navy is joined as a party to this case. We further notify
the Department of the Navy by this decision of its joinder as a party to the matter. The complaint
is REMANDED to the Air Force and the Navy for further processing in accordance with this
decision and the Order below.
ORDER
Both Agencies are ORDERED to take the following actions:
(1) The Department of the Air Force is ORDERED to contact the Department of the Navy to
commence jointly processing Complainant's complaint. The two agencies shall
commence the joint processing of this case by sending Complainant a joint letter
acknowledging receipt of the remanded complaint within thirty (30) calendar days of the
date this decision becomes final.
(2) Following an investigation by both agencies, the agencies are ORDERED to provide
Complainant with a copy of the report of investigation and notice of her right to request a
hearing before an Equal Employment Opportunity Commission Administrative Judge
(AJ). If Complainant requests an immediate final decision, the agencies are ORDERED
to jointly issue a final decision, pursuant to 29 C.F.R. § 1614.110(b), with appeal rights to
this Commission, in which each agency addresses the issue of its respective liability for
the discriminatory hostile work environment. This joint final decision shall be issued
within sixty (60) calendar days of the date this decision becomes final.
(3) A copy of the letter of acknowledgement to Complainant that her complaint is being
jointly processed by the Department of the Air Force and the Department of the Navy,
and a copy of the joint final decision on liability must be sent to the Compliance Officer
as referenced below.
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.
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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.
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;
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.
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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
September 17, 2019
Date
