[Redacted], Kyong L., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Security Service), Agency.

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal No. 2022004827 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kyong L.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Security Service), Agency. Appeal No. 2022004827 Agency No. DCSA-014-22 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s decision dated August 11, 2022, dismissing her complaint alleging 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 as a Financial Management Analyst, 0501/GG-12, at the Agency’s Defense Counterintelligence Security Agency facility in Washington, District of Columbia. On July 10, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African American), sex (female), color (Brown), disability and age when: 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. 2022004827 2 1. On June 30, 2022, Complainant’s former first-level supervisor, Supervisory Budget Analyst (“Supervisor 1”), contacted Complainant’s new employer’s HR [Human Resources] Department making accusations; 2. On June 17, 2022, Supervisor 1 required Complainant to submit the fiscal year 2023 budget for programs within her area of responsibility before Supervisor 1 would approve Complainant’s leave, although other teammates were not required to do so; 3. On June 13, 2022, Supervisor 1 rejected Complainant’s request for annual leave; 4. On May 28, 2022, Supervisor 1 required vacation confirmation before she would approve Complainant’s annual leave; 5. On May 27, 2022, Supervisor 1 discussed Complainant’s pending departure from the Agency and her duty status during a team meeting; 6. On May 13, 2022, Supervisor 1 requested evidence that Complainant’s leave was paid before she would approve the request for leave; 7. On April 21, 2022, Supervisor 1 emailed Complainant regarding the group effort to process DD Form 1164 (Claim for Reimbursement for Expenditures); 8. On April 18, 2022, Supervisor 1 included Employee Relations Specialist on emails pertaining to Complainant’s annual leave; 9. On April 15, 2022, Supervisor 1 contacted Complainant to inquire about the programs a new employee would be assigned, although the new employee had already been notified of her work assignment; 10. On April 14, 2022, Supervisor 1 threatened to reassign Complainant to another supervisor after Supervisor 1 learned that Complainant reported unfair treatment to Complainant’s second-level supervisor (“Supervisor 2”); 11. On April 11, 2022, Supervisor 1 told Complainant that Supervisor 2 was unable to locate Complainant while Complainant was out on approved sick leave; 12. On April 7, 2022, Supervisor 1 displayed a micro-aggression toward Complainant when Supervisor 1 ended her email with “No further explanation is needed”; 13. On April 7, 2022, Supervisor 1 scrutinized Complainant’s request for reasonable accommodations; 14. On March 23, 2022, the Disability Program Manager informed Complainant that Supervisor 1 did not sign Complainant’s DCSA Form 236 (Request for Accommodations) from 2021; 15. On March 23, 2022, Supervisor 1 publicly reprimanded Complainant and openly discussed Complainant’s leave usage; and 16. On February 17, 2022, Supervisor 1 spoke to Complainant in a hostile and unprofessional manner when she learned Complainant contacted Employee Relations Specialist to confirm the policy on using annual leave. The Agency dismissed the complaint in its entirety for mootness, pursuant to 29 C.F.R. § 1614.107(a)(5), reasoning that Complainant voluntarily resigned from the Agency effective July 2, 2022. 2022004827 3 ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(5) provides that the agency shall dismiss a complaint that is moot. To determine whether the issues raised in a complainant’s complaint remain in dispute, it must be ascertained: (1) if it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) if interim relief or events have completely and irrevocably eradicated the effects of the alleged violations. See Cnty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (internal citations omitted). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented. Here, the record shows that Complainant resigned from the Agency, effective July 2, 2022. The email in which Complainant informs Supervisor 1 that she is leaving the Agency is in the record. The record also includes a Notice of Rights and Responsibilities, which Complainant initialed and signed on June 15, 2022, indicating that Complainant was advised of the duty to mitigate damages and request compensatory damages. In her formal complaint, Complainant requested the following remedies: (1) that Supervisor 1 cease all forms of defamation against Complainant, cease any and all communication with her or about her to her new agency, and cease slander and bias against her; (2) that Supervisor 1 receive leadership training to include unbiased empathy training for her subordinates; (3) that Supervisor 1 discontinue all forms of harassment towards Complainant, Complainant’s reputation, and Complainant’s character; and (4) that Supervisor 1 cease all forms of retaliation against Complainant. Claims 2-16 In the above-mentioned claims, we find that the effects of the alleged violations have been completely eradicated, and there is no reasonable expectation that the alleged violations will recur inasmuch as Complainant no longer is employed by the Agency. In arriving at this conclusion, we have considered that Complainant did not request compensatory damages. Since Complainant is no longer employed by the Agency and did not request compensatory damages, claims 2-16 are rendered moot. See Cnty. of Los Angeles, 440 U.S. at 631. Claim 1 Regarding the above-cited claim, in which Complainant alleges that Supervisor 1 contacted Complainant’s new employer and made accusations, we find that the Agency improperly dismissed this claim as moot. We note that Complainant specifically raised the issue of Supervisor 1 making “false accusations” to Complainant’s new employer in her formal complaint. But see Allen v. Dep’t of Def., EEOC Appeal No. 0120093172 (Dec. 30, 2009) (affirming an agency’s dismissal for mootness where the complainant had left the agency, did not request compensatory damages, and did not bring up slander in his formal complaint)). Hence, claim 1 is not moot, as there is a reasonable expectation that the alleged violation will recur, and Complainant’s requested remedies directly address Supervisor 1’s cessation of all forms of defamation, slander, and bias against Complainant. 2022004827 4 Moreover, after careful review of the record, the Commission concludes that, in this case, Complainant is alleging that the Agency is unlawfully retaliating against her for protected EEO activity she engaged in while an employee of the Agency. We further conclude that, under the facts of this case, claim 1 states a viable retaliation claim that requires further processing. See, e.g., Doyle v. Dep’t of Just., EEOC Request No. 0520070207 (Oct. 12, 2007) (complainant stated a viable claim of retaliation when, as a former employee who had engaged in protected EEO activity, he was not selected for a contract position with the agency); Machlin v. U.S. Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007) (complainant stated a viable claim of retaliation when, as a former employee who had engaged in protected EEO activity, he was not selected for a contract position with the agency); Bimes v. Dep’t of Def., EEOC Appeal No. 01990373 (Apr. 13, 1999) (allegation of retaliation involving agency’s refusal to provide a former employee with post-employment letters of reference states a viable claim). Moreover, the Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Dep’t of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter protected activity. See EEOC Compliance Manual, Section 8, “Retaliation,” No. 915.003 (May 20, 1998), at 8-15; see also Carroll, supra. The Commission finds that claim 1, in which Complainant alleged that Supervisor 1 contacted Complainant’s new employer “making accusations” subsequent to Complainant’s protected EEO activity while an employee at the Agency, states a retaliation claim. CONCLUSION Accordingly, the Agency’s decision to dismiss claims 2-16 was proper and is hereby AFFIRMED. The dismissal of claim 1 was improper and is hereby REVERSED. Claim 1 is REMANDED to the Agency 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. 2022004827 5 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 (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. 2022004827 6 A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. 2022004827 7 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 January 26, 2023 Date