Erich B.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

May 14, 2019

0120181033 (E.E.O.C. May. 14, 2019)

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

Erich B.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture,
Agency.

Appeal No. 0120181033

Agency No. GIPSA201700865

DECISION

Complainant timely appealed with the (“EEOC” or “Commission”) from the Agency's December
29, 2017 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., 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 in the Agency’s Grain
Inspection, Packers and Stockyards Administration (“GIPSA”), Federal Grain Inspection Service
(“FGIS”), as an Assistant Field Office Manager, GS-13, at the FGIS Field Office in New
Orleans, Louisiana.

On December 11, 2017, Complainant filed a formal complaint alleging that Agency
discriminated against him on the bases of sex (male), race (Black), and age (62), when:

1. On August 28, 2017, he was temporarily reassigned to another position.

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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2. On several dates, he was subjected to various incidents of harassment, including
but not limited to when, on August 18, 2017 and several other dates, he received
threats of intimidation and was bullied by Director, Field Management Division,
FGIS (“S2”).

3. On September 25, 2017, he received an “Unacceptable” rating on his 2017
Performance Appraisal.

4. On October 16, 2017, his Within Grade Increase (“WGI”) was denied.2

Complainant’s first level supervisor (“S1”) was the Field Office Manager, FGIS, New Orleans
Field Office. S1 was the alleged responsible management official for Claims 1, 3 and 4.
Complainant’s second level supervisor (“S2”) was the Director, Field Management Division,
FGIS, Washington, D.C.

On August 18, 2017, S2 held a meeting, at the FGIS New Orleans Field Office, with multiple
FGIS Field Offices involved, included remotely. Complainant contends that S2 acted in a
manner to bully and intimidate him during the meeting. He also alleges that S2 intentionally
called the meeting to humiliate him and the New Orleans FGIS Field Office by unnecessarily
criticizing their work in front of the other offices. According to Complainant, S2 regularly
addressed him and the other African American managers in the New Orleans FGIS Field Office
in a demeaning manner.

On August 28, 2017, S1 issued a letter to Complainant to notify him that effective that day, he
would be temporarily detailed to another position (“special projects as assigned”) within the New
Orleans Field Office because he recently learned of “possible misconduct and severe
performance deficiencies” by Complainant and others in the office.3

As a result of the detail, Complainant said he was humiliated, believing that it made him look
like he did something wrong. In addition, Complainant received an unsatisfactory performance
appraisal for the 2017 Fiscal Year, and his request for a step increase was denied.

The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state
a claim. The instant appeal followed.

2 The Agency identified Claims 1 and 2 only. We find our characterization more accurately
captures the complaint.

3 According to S1, a Quality Assurance and Compliance Division (“QACD”) investigation
indicated several areas within the New Orleans Field Office, some of which fell under
Complainant’s responsibility, were using misleading reporting methods for grain measurements
to impact their performance ratings without meeting the Agency’s performance standard.
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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 or
disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz
v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). If complainant cannot
establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim.
29 C.F.R. § 1614.107(a)(1).

Claim 1

The Agency dismissed Claim 1, finding that Complainant could not establish that he was
“aggrieved.” The Agency reasoned that as a result of his temporary “detail,” “no term, condition
or privilege of [Complainant’s] employment has been affected, and no other deleterious impact
on [his] career has occurred.” We disagree. The record supports Complainant’s allegation that he
was involuntarily removed from his position as an AFOM to a “temporary” detail with no stated
end date and no supporting documentation. Therefore, Complainant is “aggrieved.”

Alternately, the Agency dismissed Claim 1 as a collateral attack on the Agency's misconduct
investigation process. This Commission has held that an employee cannot use the EEO
complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep’t of
Defense, EEOC Request No. 05970596 (Jul. 30, 1998); Kleinman v. United States Postal Serv.,
EEOC Request No. 05940585 (Sept. 22, 1994). A claim that can be characterized as a collateral
attack, by definition, involves a challenge to another forum’s adjudicatory proceeding. See
Lingad v. United States Postal Serv., EEOC Request No. 05930106 (Jun. 23, 1994).

However, simply because a complainant references another process in the complaint does not
automatically convert the claim to a collateral attack.4 If the Complainant is not affirmatively
challenging a determination by another adjudicatory body or the agency's actions within the
other adjudicatory process, it is unlikely that the claim should be dismissed as a collateral attack.
See, e.g. Complainant v. Dep’t of Justice, EEOC Appeal No. 0120122277 (Sept. 20, 2012.
Claim 1 challenges Complainant’s “temporary” removal from his position, not an adjudicatory
process or decision arising from the misconduct investigation. Therefore, the Agency’s dismissal
on the grounds that Complainant attempted to lodge a collateral attack on another administrative
process was improper.

4 EEOC Federal Sector Report, Preserving Access to the Legal System: Common Errors by
Federal Agencies in Dismissing Complaints of Discrimination on Procedural Grounds (Sept. 15,
2014) available at https://www.eeoc.gov/federal/reports/dismissals.cfm.
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Claim 2

The Commission has held that a claim of harassment may survive if it alleges conduct that is
sufficiently severe or pervasive to alter the conditions of the complainant’s employment. See
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).

Here, we find that the Agency has mischaracterized Complainant’s claim of harassment as
confined to the single incident that allegedly occurred on August 18, 2017 (claim 2). However, a
fair reading of the complaint indicates that Complainant was alleging ongoing harassment that
included the August 18 incident, as well as the other bullying incidents, the detail, the 2017
negative performance rating, and the denial of the within-grade increase.5 Complainant’s formal
complaint also alleged that he was denied an opportunity to serve a ninety-day detail as Acting
Field Office Manager (“FOM”), he was not selected for the position of FOM, he was taken off
the Animal Dropping (Deer) Survey team, and, he was not included and/or not allowed to attend
important weekly management meetings with other FOMs and AFOMs. These allegations
considered together are sufficient to state a viable harassment/hostile work environment claim.

Claims 3 & 4: Unaddressed Claims

The Agency erred when it failed to identify Claims 3 and 4 as part of the formal complaint.
Claim 3 (unacceptable performance appraisal) and Claim 4 (denied step increase) clearly identify
a harm with respect to a term, condition, or privilege of employment for which there is a remedy.
Complainant mistakenly raised Claims 3 and 4 in the “remedies” section of his formal complaint
form. Complainant also provided documentation for both incidents in the record. We find a fair
reading of the record indicates Complainant timely raised Claims 3 and 4 as additional disparate
treatment claims.

CONCLUSION

Accordingly, the Agency's Final Decision dismissing the complaint is REVERSED. The
complaint is hereby REMANDED to the Agency for further processing in accordance with this
Decision and the ORDER below.

5 The detail, performance appraisal and within-grade increase, while part of Complainant’s
ongoing harassment claim, should also independently be considered as claims of disparate
treatment.
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ORDER (E1016)

The Agency is ordered to process the remanded claims (detail, 2017 performance appraisal,
denied within-grade increase, and ongoing harassment) 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.

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.
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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).
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,
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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

May 14, 2019
Date