Elias R.v.Dep’t of the Army

Equal Employment Opportunity Commission

Nov 6, 2019

EEOC Appeal No. 2019005422 (E.E.O.C. Nov. 6, 2019)

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

Elias R.,1
Complainant,

v.

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

Appeal No. 2019005422

Agency No. ARFTWAIN19MAR01768

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated June 11, 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 Agency as a DA Intern-Installation
Management Specialist, 0301, GS 7 at USGA - Alaska in Fort Wainwright, Alaska.

According to the Agency, on April 24, 2019, Complainant filed a formal complaint claiming that
the Agency discriminated against him based on race, national origin, sex, color, and in reprisal
for prior protected EEO activity. The formal complaint was comprised of numerous claims
which the Agency identified as claims (a) through (s).

On June 11, 2019, the Agency issued a final decision. The Agency dismissed the formal
complaint pursuant to 29 C.F.R. § 1614.107(a)(2), finding that the formal complaint was
untimely filed. The Agency reasoned that Complainant received the Notice of Right to File a
Formal Complaint (Notice) on March 28, 2019.

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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The Agency found, however, that Complainant did not file his formal complaint until April 24,
2019, which it determined was well beyond the 15-day filing period.

The Agency alternatively dismissed claims (b), (c), and (h), pursuant to 29 C.F.R.
§ 1614.107(a)(1), for failure to state a claim. As summarized by the Agency, Complainant
alleged in these three claims that he was discriminated against when:

b. on February 22, 2019, a responsible management official (“RMO1”) allegedly
emailed Complainant several times and then went to Complainant’s office asking
to meet with Complainant. Complainant allegedly requested legal representation,
and RMO1 allegedly denied Complainant’s request;

c. on February 20, 2019, Complainant alleged that he asked for legal representation
during his performance review with a responsible management official (“RMO2”)
and RMO2 allegedly stated that Complainant did not have a right to legal
representation;

h. on or about January 23, 2019, Complainant alleges harassment when the first
dispatcher met him with yelling and Complainant was allegedly hit on the hand.

The instant appeal followed. On appeal, Complainant argues that he timely filed his formal
complaint. Complainant explains that he received the Notice on April 8, 2019, not on March 28,
2019. Complainant further argues that he submitted a formal complaint on April 11, 2019 which
was received by the Agency on April 12, 2019, and not on April 24, 2019. In support of his
assertions, Complainant submits copies of mail tracking confirmations indicating the date he
received the Notice and the date the Agency received his formal complaint.

ANALYSIS AND FINDINGS

Untimely Formal Complaint

The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an Agency
shall dismiss a complaint which fails to comply with the applicable time limits contained in
29 C.F.R. § 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15)
days of receiving notice of the right to do so.

Our review of the record indicates that Complainant timely filed his formal complaint. The
Notice included in the record is dated March 28, 2019, but there is no mail receipt confirmation
to support that this Notice was received by Complainant on the same day that was dated.
Additionally, the Agency does not provide a mail confirmation in the record to support that
Complainant’s formal complaint was received on April 24, 2019. However, the record includes
a mail receipt indicating that a document was issued to Complainant on March 28, 2019 and the
document was received by Complainant on April 8, 2019.
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These dates corroborate Complainant’s assertion that he did not receive the Notice until April 8,
2019. Additionally, the record includes a mail receipt indicating that Complainant issued, by
overnight delivery, a document to the Agency which the Agency received on April 12, 2019.
These dates corroborate Complainant’s assertion that he mailed his formal complaint on April
11, 2019 and his formal complaint was received by the Agency on April 12, 2019, and not on
April 24, 2019 as the Agency contends. We note that the record does not contain any evidence
of a mail confirmation dated March 28, 2019 or April 24, 2019. Absent documentation stating to
the contrary, we find that Complainant received the Notice on April 8, 2019 and timely filed his
formal complaint which was received by the Agency on April 12, 2019. Therefore, we find that
Complainant timely filed his formal complaint within fifteen days of receiving the Notice.

Failure to State a Claim – (Claims (b), (c), and (h))

A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt
that the complainant cannot prove a set of facts in support of the claim which would entitle the
complainant to relief. The trier of fact must consider all of the alleged harassing incidents and
remarks and considering them together in the light most favorable to the complainant, determine
whether they are sufficient to state a claim. Cobb v. Dep’t of the Treasury, EEOC Request No.
05970077 (Mar. 13, 1997).

Claims (b), (c), and (h) were improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1), on
the alternative grounds of failure to state a claim. A review of Complainant’s formal complaint
indicate that he alleges that he was subjected to “ongoing harassment.” Among other alleged
incidents, Complainant alleges in his formal complaint that he was denied legal representation
during his performance review, was yelled at when he refused to meet with management
privately and was subsequently terminated from the Agency because of his refusal to meet with
management privately. Complainant further alleges that the Human Resources Director issued
emails to Complainant’s supervisor to harm Complainant’s reputation, “lunged at and hit”
Complainant, joked that Complainant was a “Good N---er,” and was the management official
who sent Complainant his termination letter. Complainant also alleges that he was subjected to
sexual harassment by the Director who also allegedly yelled at him so loudly that others in the
office could hear. When viewing all of Complainant’s claims collectively, including three
claims at issue, Complainant has set forth an actionable claim of harassment. We find that these
alleged incidents are sufficiently severe or pervasive to set forth an actionable claim of
harassment. Therefore, we do not find that the claims (b), (c) and (h) fail to state a claim and the
Agency erred in dismissing these matters on this basis. A review of all the raised claims,
including these three expressly dismissed by the Agency, reflects that Complainant has alleged
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 (Apr. 21, 1994).

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CONCLUSION

We REVERSE the Agency’s final decision dismissing the formal complaint on the procedural
grounds discussed above. We 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 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.
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).
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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 (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.
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).

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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

November 6, 2019
Date