Hyun T.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 30, 2019

2019003227 (E.E.O.C. Sep. 30, 2019)

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

Hyun T.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 2019003227

Agency No. ARFTLEAV18JUL05410

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated March 4, 2019, 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.

BACKGROUND

During the period at issue, Complainant worked as a Lead Medical Records Technician, GS-06,
at the Agency’s Munson Army Health Center in Fort Leavenworth, Kansas.

On September 3, 2018, Complainant filed a formal complaint alleging that the Agency subjected
her to unlawful retaliation for prior protected EEO activity when:

a. On or about September 13, 2018, the Agency’s Commander issued Complainant 7-Day
suspension for misconduct;

b. On July 6, 2018 she was issued a Notice of Proposed 14-Day Suspension for misconduct;

c. On or about June 4, 2018, the Chief of Human Resources questioned Complainant about a
statement she allegedly made referring to a named Agency official, indicating that this

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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official “got what she deserved.” Complainant further alleged that the Agency was
considering disciplinary action against her as a result of her alleged comment.

d. On or about May 29, 2018, named Agency officials issued Complainant a failed
performance evaluation;

e. On or about April 3, 2018, a named Agency official yelled at Complainant and was
disrespectful toward her during a mid-point evaluation. Complainant further alleges that
the Deputy Commander for Administration failed to take any actions to stop the behavior;

f. On or about March 19, 2018, Complainant witnessed threats by Agency officials against
her representative who serves as the Union Executive Vice President. Complainant further
alleges that an Agency official forced Complainant to change her statement in an AR 15-6
investigation;

g. On or about February 23, 2018, she was subjected to an AR-15-6 investigation in which
Complainant was accused of making inappropriate statements;

h. On or about January 30, 2018, Complainant received a negative mid-point evaluation;

i. On or about September 2017, Complainant was subjected to bullying and/or harassment
by her co-workers through a Facebook page.

On March 4, 2019, the Agency issued a final decision dismissing the complaint in its entirety for
failure to state a claim in accordance with EEOC Regulation 29 C.F.R. §1614.107(a)(1).
Specifically, the Agency determined that the sole basis raised in the formal complaint was reprisal,
that Complainant has shown no prior protected activity, and that the subject claims therefore are
not justiciable because there is no covered basis.

The instant appeal followed.

ANALYSIS AND FINDINGS

Upon review, we find that the Agency improperly dismissed Complainant's complaint for failure
to state a claim under 29 C.F.R. § 1614.107(a)(1). A complaint should not be dismissed for failure
to state a claim unless it appears beyond doubt that a complainant cannot prove a set of facts in
support of the claim which would entitle him or her to relief. In a claim of ongoing harassment
such as the one presented here, all of the alleged harassing incidents and remarks must be
considered together in the light most favorable to a complainant in order to determine whether they
are sufficient to state a claim. See Cobb v. Dep't of the Treasury, EEOC Request No. 05970077
(Mar. 13, 1997); Miller v. Dep't of the Treasury, EEOC Request No. 05A10333, (Aug. 15, 2002).

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Here, a fair reading of the record shows that Complainant has alleged that Agency officials have
subjected her to retaliatory harassment and created a hostile work environment concerning a series
of events from September 2017 through September 2018. Complainant contends that Agency
officials have proposed discipline against her, issued negative performance evaluations, yelled at
her and treated her disrespectfully, accused her of making inappropriate statements, and disparaged
her in Facebook comments. This is sufficient to state a viable claim of harassment/hostile work
environment.

In its dismissal decision, the Agency asserted that Complainant has failed to assert a valid
retaliation claim because there was no indication that she had engaged in prior activity protected
by the anti-discrimination statutes. However, we find, in this instance, that the Agency has
addressed the merits of the complaint without a proper investigation as required by the regulations.
Based on the record presented here, the Agency’s determination that Complainant’s retaliation
claim cannot be sustained because she has not engaged in prior protected activity is irrelevant to
the procedural issue of whether she has stated a justiciable claim under Title VII. See Osborne v.
Department of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United States
Postal Service, EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United States Postal
Service, EEOC Request No. 05910642 (August 15, 1991). An investigation will uncover whether
or not Complainant can establish unlawful retaliation for prior protected activity.

CONCLUSION

The Agency's final decision dismissing Complainant's complaint is REVERSED. The complaint
is REMANDED 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.

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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 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.
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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.

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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 30, 2019
Date