[Redacted], Walton Z, 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Feb 15, 2023

Appeal No. 2022005106 (E.E.O.C. Feb. 15, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Walton Z,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022005106 Agency No. AREURHPFZ22JAN01540 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated May 25, 2022, dismissing his 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 During the period at issue, Complainant was a former Agency employee who had worked as as a Material Handler II - Cyclic Inventory Team Leader, Grade NF-01, for the Agency’s Army and Air Force Exchange Service Distribution Center in Germershein Army Depot (GAD) at U.S. Army Garrison (USAG) Rheinland-Pfalz in Germany. On May 5, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), disability, age (59), and in reprisal for prior EEO-protected activity (prior EEO claim against the Agency which resulted in a settlement) 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. 2 2022005106 a. On January 10, 2022, Complainant discovered the GAD Base Operations Manager, informed a potential employer, Defense Commissary Agency (DeCA) that German law enforcement officials were looking for Complainant; b. On January 10, 2022, Complainant discovered the GAD Base Operations Manager advised the hiring official at DeCA that Complainant was “One Of Them” meaning a Black person or a person of another race; c. On January 10, 2022, Complainant discovered the GAD Base Operations Manager informed the hiring official at DeCA of Complainant's age (approximately 59 years) and physical disabilities; d. On January 10, 2022, Complainant discovered the GAD Base Operations Manager informed DeCA and Defense Logistics Agency managers of Complainant's participation in protected EEO activities filed against AAFES. On May 25, 2022, the Agency issued a final decision dismissing the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The Agency determined that Complainant was neither an aggrieved employee of the Agency nor was he an aggrieved applicant for Agency employment. The instant appeal followed. ANALYSIS AND FINDINGS In accordance with 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes the agency has subjected him to discrimination based on race, age, disabling condition or for having engaged in EEO activity. 29 C.F.R. §§ 1614.103, 1614.106(a). The Commission’s federal sector case precedent defined an “aggrieved employee” as one who suffers a present employment harm for which there is a remedy under EEOC regulations. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). If Complainant cannot establish that he is aggrieved, then the Agency shall procedurally dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). Here, we cannot concur with the Agency’s determination that Complainant has failed to state a claim. A former agency employee may state a viable retaliation claim for protected activity that arose after employment with that agency, even though the disputed adverse action occurred after the employment relationship was terminated. In Robinson v. Shell Oil Co., 519 U.S. 337 (1997), where a former employer gave its former employee a negative job reference, the Supreme Court of the United States clarified that the anti-retaliation provision of Title VII includes former employees. Similarly, in Barbara S. v. Dep’t of the Navy, EEOC Appeal No. 2021001824 (June 8, 2021), the complainant was a former agency employee who had engaged in EEO protected activity. 3 2022005106 A contract employer extended an employment offer to the complainant after she left the agency, but the offer was rescinded after complainant’s former supervisor from the agency gratuitously provided a negative reference to the contract employer. In such circumstances, we held that complainant had stated a viable claim of reprisal discrimination against her former agency employer. Likewise, in the present matter, while Complainant had been employed by the Agency, he had engaged in EEO activity that resulted in a settlement with the Agency. After Complainant left the Agency, in late 2021, Complainant applied for employment vacancies in Germany that were posted by other agencies including the Defense Logistics Agency and DeCA. DeCA referred Complainant and interviewed him for a fork-lift handler position. When Complainant inquired after the status of his applications, the DeCA hiring official emailed Complainant the following message: I received a call from the Germersheim Army Depot Operations Office for USAG Rheinland-Pfalz that the German Police is looking for you and to not consider you for any employment. That said, I ask you kindly to not send me anymore emails and or please do not try to contact me by phone. In an undated letter, the GAD Base Operations Manager apologized to Complainant for sharing information that was incorrect and damaging to Complainant’s career.2 Such purported adverse action would deter a reasonable employee from opposing discrimination or participating in the EEOC charge process. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U. S. 53 (2006). Therefore, based on a fair reading of this record, as described above, this Commission holds that as a former employee, Complainant stated a viable claim and the Agency’s dismissal was improper. CONCLUSION Following a thorough review of the entire record, we REVERSE the final agency decision and REMAND the matter to the Agency for further processing consistent 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. 2 According to the Agency, the GAD Base Operations Manager has since retired. 4 2022005106 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 (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 5 2022005106 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. 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 (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. 6 2022005106 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 February 15, 2023 Date