Gwendolyn G.,1 Complainant,v.Ryan D. McCarthy, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 4, 2019

2019001528 (E.E.O.C. Sep. 4, 2019)

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

Gwendolyn G.,1
Complainant,

v.

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

Appeal No. 2019001528

Agency No. ARLEWIS18MAY07935

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency’s decision dated August 14, 2018, dismissing her 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. Upon review, the Commission finds that
Complainant’s complaint was improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for
failure to state a claim.

ISSUE PRESENTED

The issue presented is whether the Agency properly dismissed Complainant’s formal EEO
complaint for failure to state a claim.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Health System
Administrator at the Agency’s Madigan Army Medical Center, Joint Base Lewis-McChord in
Lakewood, Washington.

On May 17, 2018, Complainant made initial contact with an EEO Counselor. Informal efforts to
resolve her concerns were unsuccessful.

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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On July 2, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to
discrimination on the bases of sex (female) and in reprisal for prior protected EEO activity when:

1. on May 11, 2018, Complainant stated that she met with leadership and a Human Resource
Assistant to discuss Senior Leadership problems. For example, she noted how her first line
supervisor, the Lieutenant Colonel, did not stop or correct the Administrative Officer (AO)
for making statements about what she had done wrong as a supervisor;

2. on May 8, 2018, Complainant stated that after a conversation about restructuring the
department, she asked the Lieutenant Colonel why the male Noncommissioned Officer in
Charge (NCOIC) joined her for the meeting when the prior female NCOIC was never
invited;

3. on May 4, 2018, Complainant stated that she was yelled at by the Physician when he found
out that the Installation Management Command (IMCOM) informed him that he could not
refuse soldiers from patient care;

4. on May 2, 2018, Complainant stated that she informed the Lieutenant Colonel of an email
she received from the AO that she found inappropriate;

5. on April 30, 2018, Complainant stated that she met with the Lieutenant Colonel to further
discuss the drafted DD Form 2906 Department of Defense Civilian Performance Plan,
Progress Reviews and Appraisal. Complainant stated that she spoke to the Lieutenant
Colonel about the legitimacy of his comments in the performance element narrative of
element numbers 6 (Customer Services) and 8 (Act in the Place of the Department Chief);

6. on April 27, 2018, Complainant said she met with the Lieutenant Colonel to review
evaluation (February 21, 2018-March 31, 2018) and objected to comments written in
performance element narrative of element numbers 6 (Customer Services) and 8 (Act in
the Place of the Department Chief);

7. on March 20, 2018, Complainant said she was informed by the Lieutenant Colonel to start
working with the Union on the movement of the Military Intelligence Program (MIP) staff
to their new work area;

8. on March 19, 2018, Complainant said she informed the Lieutenant Colonel that she would
not be able accomplish all taskers; and

9. in an unspecified month, Complainant met with her supervisor and HR with respect to the
restructure of the department. Complainant said HR spoke about employees’ activity with
the Union, and procedures to use to avoid any grievances.

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On August 14, 2018, the Agency issued a final decision dismissing the complaint for failure to
state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency determined that Complainant
was not aggrieved because she did not suffer a personal loss or harm with respect to a term,
condition or privilege of employment. The Agency went through each claim and detailed why
Complainant did not suffer any loss or harm. The Agency also determined that even if the incidents
were true, they were not sufficiently severe or pervasive to create a hostile work environment for
a reasonable person.

CONTENTIONS ON APPEAL

Complainant emphasized that her claim of reprisal was not solely based upon seeking out EEO
assistance, but rather for making her hostile work environment and sex-based discrimination
complaints known. Complainant reiterated many of her prior statements and arguments, including
detailing the effects of the harassment on her mental and physical state. Complainant noted that
she used 23 days of sick leave due to the stress of harassment. Complainant reiterated how she
came to realize she was being subjected to a hostile work environment based on her sex, and in
retaliation for making complaints to senior management. For example, Complainant stated that
while she knew she was being subjected to a hostile work environment, it was not until she spoke
with a management official did she realize that her treatment stemmed from her sex. Complainant
asserted that while male employees were given wide latitude, her actions were openly criticized,
and heavily monitored.

Complainant also asserted that the Agency’s structuring of her claims was deceptive. For example,
Complainant asserted that the Agency glossed over her ongoing harassment complaints against the
AO and the Physician. Incidents were brushed off as one-time incidents, when the discrimination
was ongoing. Complainant noted that the Lieutenant Colonel never took her concerns seriously,
and did nothing to assist her. Complainant also noted that she is the only Deputy Chief in her
department, and therefore, no one else is equal to her in the hierarchy of the Department.
Complainant asserted that as such, the Lieutenant Colonel and she were the leaders in the
Department. Yet, the Lieutenant Colonel was often seeking advice and counsel from lower senior
male employees. Complainant requested reconsideration of the Agency’s dismissal.

The Agency did not provide an appellate brief.

ANALYSIS AND FINDINGS

The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an Agency
shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any
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.
Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
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Based on the record, we determine that Complainant has stated a valid claim of harassment, as
discussed in Complainant’s pre-complaint, formal complaint, and appellate documents. For
example, Complainant asserted that raising her concerns negatively affected her performance
evaluations, noting the April 27, and 30, 2018 incidents regarding her evaluation. We note that the
Agency discussed in detail how Complainant did not suffer any harm to a term or condition
regarding her evaluation. However, we find that in those claims, as with the others, the Agency
has articulated reasons that go to the merits of Complainant’s complaint, and as such, are irrelevant
to the procedural issue of whether she has stated a justiciable claim. Ferrazzoli v. U.S. Postal Serv.,
EEOC Request No. 05910642 (August 15, 1991).

Here, the essence of the subject claim is that based on Complainant’s protected class and in
reprisal, she was disparately treated and subjected to an ongoing hostile work environment by the
AO, the Physician, and the Lieutenant Colonel. Complainant has addressed a personal loss or harm
to a term, condition or privilege of employment for which there is a potential remedy. Additionally,
Complainant asserted that in multiple, dated, incidents, the Lieutenant Colonel did not pursue her
claims of hostile work environment. Complainant asserted that her concerns were often either
ignored, or brushed off as incidental workplace annoyances. By alleging a pattern of harassment,
Complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. U.S.
Postal Serv., EEOC Request No. 05930303 (November 12, 1993).

The Agency is reminded that under 29 C.F.R. § 1614.403(e) it must submit the complaint file to
the Commission within 30 days of initial notification that the complainant has filed an appeal. In
this case, the agency did not submit the file until July 19, 2019, approximately 5 months after the
Commission’s notification of the appeal.

CONCLUSION

Accordingly, the Agency’s final decision dismissing Complainant’s complaint is REVERSED.
The complaint is hereby REMANDED to the Agency for further processing in accordance with
this decision and the ORDER below.

ORDER
Given the Agency’s lengthy delay in submitting the complaint file to the Commission, we find
that the Agency must process the instant complaint expeditiously.
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 ninety (90) 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.
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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 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 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:
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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.

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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.
Carlton M. Hadden, Director
Office of Federal Operations

September 4, 2019
Date