Starr R.,1 Complainant,v.David S. Ferriero, Archivist of the United States, National Archives and Records Administration, Agency.

Equal Employment Opportunity Commission

Sep 17, 2019

2019001285 (E.E.O.C. Sep. 17, 2019)

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

Starr R.,1
Complainant,

v.

David S. Ferriero,
Archivist of the United States,
National Archives and Records Administration,
Agency.

Appeal No. 2019001285

Agency No. 1810STL

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated October 15, 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., 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 Supervisory
Archives Specialist, GS-9, at the Agency’s National Personnel Records Center (NPRC) facility
in St. Louis, Missouri.

On February 26, 2018, Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination on the bases of race (African-American), sex (female), color (black), and
reprisal for prior protected EEO activity when, on November 29, 2017, she learned from the
Manager of Reference Core 4 and the Assistant Director of the Agency (Manager1 and
Manager2) that management had given the selectee for a promotion detail, for which
Complainant had applied, preferential treatment and advantages in the application and selection
process, to ensure that the selectee applied and was selected for the detail.

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 March 23, 2018, Complainant amended her complaint to allege that the Agency’s
management subjected her to an ongoing pattern of discrimination and/or harassment on the
bases of age, race, color, sex and in reprisal for prior EEO activity when, beginning November
27, 2017, involving incidents related to the assignment of duties, pay including overtime,
promotion/non-selection, reassignment directed, and reprisal/retaliation.

In June 2018, Complainant submitted copies of emails dated in May and June 2018, indicating
that she wished to amend her complaint. The emails discussed various things, including that,
Complainant was reassigned to Core 3 and that her personal items had been moved to the Core 2
storage closet while she was on leave.

In an email dated June 20, 2018, the Agency requested that Complainant provide information,
regarding her amended claims, including the date and location of the alleged incident(s), persons
involved, summary of what happened and why Complainant believes it was discriminatory, and
the remedies she is seeking. On September 18, 2018, the Agency followed up with a letter
requesting this same information, within 15 days of receipt, and advising her that failure to do so
may result in the dismissal of her complaint, pursuant to 29 C.F.R. § 1614.107(a)(7).

In response, on September 24, 2018, Complainant emailed the Agency, stating, “I do not choose
to amend EEO Case No. 1810STL, at this time.”

On October 15, 2018, the Agency issued a dismissal of the complaint. In so doing, it indicated
that Complainant alleged that she was retaliated against and subjected to harassment (non-
sexual) based on her race, color, sex, and age and in reprisal for prior EEO activity when:

1. On November 29, 2017, the feedback she received regarding a promotion detail
gave her the impression that there was preferential treatment toward one
employee;
2. On June 4, 2018, management moved her personal items to Core 2 storage closet
while she was on leave; and
3. On June 5, 2018, management allegedly commented to others that either she
and/or the remedies that she requested were “insane.”

The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state
a claim and pursuant to 29 C.F.R. § 1614.107(a)(7), for failure to cooperate.

The instant appeal followed. On appeal, Complainant clarifies that she claims the Agency
violated several EEO laws in discriminating against her. She reiterates that the Agency’s
management has subjected her to harassment and a hostile work environment, listing several
instances of alleged harassment, occurring between 2013 and November 2017, including several
non-selections and an involuntary reassignment.

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In response, the Agency reiterates its findings in its final decision and asserts that, on appeal,
Complainant alleges additional claims that were not part of her complaint –namely, that she has
been subject to a hostile work environment since 2013 because she has not been selected for a
promotion. The Agency asks that we affirm its dismissal, noting that, in response to its attempts
to gather information, Complainant gave only vague answers, and Complainant has not alleged
any facts sufficient to establish she was an “aggrieved employee” within the meaning of EEO
laws.

ANALYSIS AND FINDINGS

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). When the complainant does not allege he or she is aggrieved within the
meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim
pursuant to 29 C.F.R. § 1614.107(a)(1).

EEOC Regulation 29 C.F.R. § 1614.107(a)(7) provides that, prior to a request for a hearing in a
case, the agency shall dismiss an entire complaint where the agency has provided the
complainant with a written request to provide relevant information or otherwise proceed with the
complaint, and the complainant has failed to respond to the request within 15 days of its receipt
or the complainant's response does not address the agency's request, provided that the request
included a notice of the proposed dismissal. Instead of dismissing for failure to cooperate, the
complaint may be adjudicated if sufficient information for that purpose is available.

Here, we find that Complainant’s initial formal complaint, filed on February 26, 2018, is
sufficient to state a claim. This is a non-selection allegation regarding a promotion detail, where
Complainant alleges that management discriminated against her by extended preferential
treatment and other advantages in the application process to the selectee, to ensure that he would
be selected. Complainant has alleged facts, which, if proven true, would establish that she
suffered a present harm or loss with respect to a term, condition, or privilege of employment for
which there is a remedy.

That said, we do not find Complainant’s subsequent communications with the Agency
sufficiently identified her additional claims. Although Complainant communicated an intent to
amend the instant complaint, she did not provide, nor does the record contain, sufficient relevant
information to adjudicate those remaining claims. The record establishes that the Agency
provided written notice requesting such information and informing her that failure to comply
could result in the dismissal of her claims. Complainant responded to the Agency’s notice but did
not provide the requested information. Therefore, we find dismissal of these claims, pursuant to
29 C.F.R. § 1614.107(a)(7), was proper.
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We also note that, to the extent Complainant raises new, additional claims on appeal, they are not
currently before the Commission.

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 (E0618)
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 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 (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.
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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. 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).

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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. 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 17, 2019
Date