Joan M,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Information Systems Agency), Agency.

Equal Employment Opportunity Commission

Oct 25, 2018

0120182613 (E.E.O.C. Oct. 25, 2018)

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

Joan M,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Information Systems Agency),
Agency.

Appeal No. 0120182613

Agency No. DOD-DISA-18-004

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated June 25, 2018, dismissing a formal
complaint of unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the period at issue, Complainant worked as a IT Specialist at the at Fort Meade in
Maryland. On December 27, 2017, Complainant filed a formal complaint alleging that the
Agency subjected him to discrimination based on disability and in reprisal for prior protected
EEO activity.

In its final decision dated June 25, 2018, the Agency determined that the formal complaint was
comprised of the following claims:

Complainant alleged he was discriminated against based on disability and in reprisal for
prior protected activity culminating in a hostile environment when:

1. From August 3, 2017 through November 9, 2017 Complainant received

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.
0120182613

2
passive-aggressive emails from management in retaliation for his prior EEO
activity;

2. On September 11, 2017, management issue Complainant a Letter of
Counseling.

3. On October 18, 2017, Complainant was harassed and lied to about his
reasonable accommodation request, causing further delay in the processing of
his request.

4. On October 25, 2017, Complainant was ignored and denied a response when
he inquired about his reasonable accommodation request;

5. On or about October 2017, management denied Complainant’s request for a
reasonable accommodation;

6. On or about October 27, 2017, management delayed and later denied
Complainant’s request for a temporary assignment to OCMO. Complainant
alleged the temporary assignment packet was ready on October 25, 2017, and
that [management] delayed submission until October 27, 2017.

7. On or about November 2017, Complainant was routinely prodded, questioned,
and interrogated about his mood.

8. On November 9, 2017, management issued Complainant the Letter of
Reprimand;

9. On or about December 4, 2017, after returning from leave, management
presented Complainant with a Proposed Suspension. The 14-day suspension
was upheld and enforced on January 16, 2018.

10. On or about December 2017, Complainant alleged that the more he reported
his concerns about the work environment and hostility that existed in the
workplace, the more he became the target of false disparaging allegations
about his persona.

11. On February 13, 2018, Complainant alleged management shared and/or
disclosed his [personal] information to unauthorized personnel and without
Complainant’s consent.

12. From August 4, 2017, until the present time, Complainant alleged the Agency
failed to timely process [his] EEO claims.

0120182613

3
The Agency dismissed claims (1) - (11) on the grounds that these matters have been rendered
moot. The Agency stated that Complainant resigned from Agency employment effective March
17, 2018. Thus, the Agency found that there is no reasonable expectation that the alleged
violations will recur. In addition, the Agency noted that it sent Complainant a letter requesting
Complainant provide proof of objective evidence in support of his claim for compensatory
damages. The Agency said it did not receive a response to this request. The Agency dismissed
claim (12) for alleging dissatisfaction with the processing of prior complaints.2

Complainant, on appeal, asserts that the Agency’s dismissal of his complaint is improper.
Complainant states that he was subjected to a hostile work environment based on his prior
protected activity which encompassed numerous incidents and culminated in his constructive
discharge. Complainant states that he requested the Agency to amend his complaint to include a
claim of constructive discharge in March 2018.

In response, the Agency requests that we affirm its final decision dismissing Complainant’s
complaint. The Agency asserts, on appeal, that Complainant’s attempt to amend his complaint to
add a claim of constructive termination fails to state a claim because it lacks specificity. The
Agency states that “Complainant failed to assert the constructive termination claim with
sufficient specificity to alert the Agency of the basis for the Complainant’s claim.” Agency
Response Brief at 2-3. The Agency further asserts that Complainant’s appeal is untimely. The
Agency states that it sent the final decision to Complainant’s representative via email on June 26,
2018. The Agency further states that Complainant filed the appeal on July 30, 2018, thirty-four
days after Complainant’s representative was sent the final decision by email.

In reply, Complainant asserts that his appeal is timely. Complainant reasserts that he informed
the Agency of his constructive termination claim.

ANALYSIS AND FINDINGS

Timeliness of Complainant’s Appeal

As an initial mater, we find Complainant’s appeal to be timely. The record is devoid of evidence
of when Complainant received the Agency’s final decision. While the Agency asserts that the
final decision was emailed to Complainant and his representative on June 26, 2018, the record is
devoid of evidence of when either Complainant or his representative received the final decision
via email. We note that is unclear from the record whether Complainant’s representative is an
attorney.3 Even assuming arguendo that Complainant’s representative is an attorney, we find

2 We note that Complainant, on appeal. does not expressly contest the Agency’s dismissal of
claim (12). Thus, we decline to address this matter further herein.

3 If a complainant is represented by an attorney of record, then the 30-day time period within
which to appeal shall be calculated from the receipt of the required document by the attorney. In
all other instances, the time within which to appeal shall be calculated from receipt of the
0120182613

4
that the record reflects that Complainant’s representative received the hard copy of the final
decision via UPS on June 28, 2018. Complainant’s representative filed the appeal on July 30,
2018, within the applicable time period. Based on the foregoing, we find that Complainant’s
appeal is timely filed.

Dismissal for Mootness

The Agency improperly dismissed claims (1) - (11) on the grounds that these matters had been
rendered moot when Complainant resigned from the Agency. EEOC Regulation 29 C.F.R.
§1614.107(e) provides for the dismissal of a complaint when the issues raised in it have been
rendered moot. To determine whether the issues raised in a complaint are moot, the factfinder
must ascertain whether: (1) it can be said with assurance that there is no reasonable expectation
that the alleged violation(s) will recur; and (2) interim relief or events have completely and
irrevocably eradicated the effects of the alleged discrimination. See County of Los Angeles v.
Davis, 440 U.S. 625, 631 (1979). When such circumstances exist, no relief is available and no
need for a determination of the rights of the parties is presented.

In the instant matter, we find that Complainant is alleging that he was subjected to a hostile work
environment comprising numerous incidents which culminated in his constructive termination.
We are not persuaded by the Agency’s assertion that Complainant did not properly raise the
issue of his alleged constructive termination with the Agency. The record contains an email
from Complainant’s representative to various Agency EEO officials dated March 10, 2018.
Therein, Complainant’s representative states that “[t]his is a formal request to amend the claims
of [Complainant] to include a claim for constructive termination.” We are further not persuaded
by the Agency’s argument in its response brief that Complainant’s claim fails to state a claim
because it lacks specificity regarding the basis. We note that Complainant’s initial complaint
alleged he was subjected to a hostile work environment in reprisal for protected activity. We
find that this was sufficient to put the Agency on notice that Complainant was seeking to amend
his initial complaint that the hostile work environment (based on his prior protected activity)
culminated in his constructive discharge.

Thus, we find that Complainant’s complaint has not been rendered moot by his resignation. If
the Agency was found to have subjected Complainant to unlawful discrimination (a hostile work
environment culminating in his constructive discharge), he would be entitled to reinstatement.
Thus, we find that Complainant’s complaint has not been rendered moot.

We REVERSE the Agency’s final decision dismissing the formal complaint, defined herein as a
hostile work environment claim culminating in a constructive discharge, and we REMAND this
matter to the Agency for further processing in accordance with the ORDER below,

required document by complainant. 29 C.F.R. § 1614.402(b). In the instant matter, the EEO
Counselor’s Report reflects that Complainant’s representative is not an attorney. However, in
the certification of receipt of rights and responsibilities, Complainant designated his
representative as an attorney.
0120182613

5

ORDER (E0618)
The Agency is ordered to process the remanded claims (defined herein as a hostile work
environment claim culminating in a constructive termination) 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 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 (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.

0120182613

6
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.
0120182613

7
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

October 25, 2018
Date