Valentin G.,1 Complainant,v.Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Sep 6, 2019

2019003275 (E.E.O.C. Sep. 6, 2019)

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

Valentin G.,1
Complainant,

v.

Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.

Appeal No. 2019003275

Agency No. 2018-28071-FAA-04

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated February 28, 2019, dismissing a formal
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 for the Agency as a Supervisory Airway
Aviation Technical Systems Specialist, 2101-J, in Des Moines, Iowa.

On August 31, 2018, Complainant initiated EEO Counselor contact. Informal efforts at
resolution were not successful

On November 6, 2018, Complainant filed a formal complaint. Complainant claimed that the
Agency subjected him to discrimination based on race, sex, and in reprisal for prior EEO activity
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.
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A. 1. In 2015, his then supervisor, (GI) ended Complainant’s Technical
Operations Manager detail several months early;

2. In April 2016, another supervisor (MM), requested that Complainant
change his leave request;

3. On May 3, 2016, GI told Complainant that he was temporarily reassigned
from his management position to a technical support position, effective
May 9, 2006.

4. In October 2016, Complainant was denied a promotion opportunity;

5. In November 2016, Complainant received a negative yearly performance
review for Fiscal Year 2016;

6. In December 2016, he requested a one-year detail and was released from
working any other detail for one calendar year;

7. In January 2017, Complainant was directed to telework for the duration of
his detail;

8. On May 9, 2016, upon beginning a new work detail, Complainant’s rights
within the Agency computer system were terminated, and he was removed
from all management email distribution lists;

9. In February 2017, Complainant’s computer management rights were again
removed, and he was removed from the management distribution list;

10. From January 2017 to December 2017, a co-worker (AN) was treated
more favorably than Complainant;

11. In October 2017, Complainant received a letter stating that he must accept
an unfavorable work detail;

12. In October 207, Complainant’s work detail was canceled, and he was
placed on an unfavorable work detail;

13. In October/November 2017, Complainant was denied travel
accommodations when reassigned to a new work detail; and

14. From December 2017 to April 2018, while on the Family Medical Leave
Act, management did not offer to enroll Complainant in the voluntary
leave donor program.

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B. On April 3, 2018, named individual JC subjected Complainant to sexual
harassment when he commented that Complainant “did not have the balls
to quit.”

C. 1. In 2015, Complainant’s co-workers began to file frivolous charges
against him;

2. In 2015, Complainant’s co-workers filed a frivolous Office of Inspector
General complaint against him;

3. In 2015, a named co-worker, DS began sending Complainant’s then
second line supervisor (DK) false claims of Complainant’s poor
performance and abuse of power;

4. In 2015, DS sent Complainant threatening text messages;

5. In January 2016, during a surprise meeting Complainant’s supervisor GI
called Complainant “brash” and encouraged his direct report employees to
continue emailing GI directly with issues they were having;

6. In April 2016, another supervisor (JC), told Complainant to drop any and
all investigations taking place surrounding a direct report employee’s
failure to complete an assignment and matters involving his absence
without leave, (AWOL);

7. In November 2016, a subordinate employee slandered Complainant;

8. In 2017, a management official (RC) made statements indicating that
Complainant was being targeted for harassment;

9. When Complainant advised an Agency official that he would not attend a
Minneapolis district meeting, the official called Complainant and accused
him of being a liar, being unprofessional and intentionally creating a
scheduling conflict; and

10. On or around August 27, 2018 JC reversed an agreement between
Complainant and the Des Moines Airport on a construction project.

On February 28, 2019, the Agency issued a final decision, dismissing the formal complaint in its
entirety. Specifically, the Agency determined that Complainant failed to bring claims A1
through A14 and claim B to the attention of an EEO Counselor in a timely manner.
Consequently, the Agency dismissed those claims pursuant to EEOC Regulation 29 C.F.R. §
1614.107(a)(2). The Agency next determined that claims C1-C10 failed to state a claim and
dismissed them pursuant to EEOC Regulation 29 C.F.R. §1614.107(a)(1).
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This appeal followed. Therein, Complainant through counsel, argues that the Agency
improperly fragmented Complainant’s claim thereby diluting his overall claim of discriminatory
harassment.

ANALYSIS AND FINDINGS

Failure to State a Claim

The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an Agency
shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any
aggrieved employee or applicant for employment who believes that he 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. Dep’t of the
Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).

The only questions for an agency to consider in determining whether matters state a claim are:
(1) whether a complainant is an aggrieved employee; and (2) whether the complainant raises
employment discrimination on a basis covered by EEO statutes. If these questions are answered
in the affirmative, an agency must accept the complaint for processing regardless of its judgment
of the merits. See Odoski v. Dep’t of Energy, EEOC Appeal No. 01901496 (April 16, 1990). To
determine if a complainant’s allegations are sufficient to state a claim, the trier of fact must
consider all alleged harassing incidents and remarks in light most favorable to the complainant.
Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077 (March 13, 1997).

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the
holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is
actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's
employment. Thus, not all claims of harassment are actionable. As noted by the Supreme Court
in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand
comments, and isolated incidents (unless extremely serious) will not amount to discriminatory
changes in the ‘terms and conditions of employment.”’

The Agency improperly fragmented Complainant’s claim of ongoing discriminatory harassment
by dismissing claims C1 through C10 for failure to state a claim. A fair reading of his formal
complaint reflects that Complainant claims he was subjected to a series of related incidents of
harassment from 2015 through August 2018. Complainant is alleging that he has been subjected
to ongoing discriminatory harassment due to the actions of several management officials over a
specific period of time. When viewing these alleged incidents collectively, we find that these
matters are sufficiently severe or pervasive to set forth an actionable hostile work environment
claim.
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We find therefore that Complainant has shown an injury or harm to a term, condition, or
privilege of employment for which there is a remedy. See Diaz v. Dep’t of the Air Force, EEOC
Request No. 05931049 (April 21, 1994).

Untimely EEO Counselor Contact – claims A1-14 and claim B

EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be
brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45)
days of the date of the matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action. In Morgan, the Supreme Court held
that a complaint alleging a hostile work environment will not be time barred if all acts
constituting the claim are part of the same unlawful practice and at least one act falls within the
filing period. See National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002).
The Court further held, however, that “discrete discriminatory acts are not actionable if time
barred, even when they are related to acts alleged in timely filed charges.”1 Id. Untimely discrete
acts may be used as background evidence in support of a timely claim, however. Id.

A hostile work environment claim, however, is comprised of a series of separate acts that
collectively constitute one unlawful employment practice. National Railroad Passenger
Corporation v. Morgan, Jr., 536 U.S. 101, 117 (2002). Unlike a claim which is based on discrete
acts of discrimination, a hostile work environment claim is based upon the cumulative effect of
individual acts that may not themselves be actionable. Id. at 115. Furthermore, a hostile work
environment claim will not be time barred if all acts constituting the claim are part of the same
unlawful practice even if some component acts of hostile work environment fall outside the
statutory time period so long as an act contributing to the claim falls within the filing period. Id.
at 117. However, Complainant cannot recover for the specific discrete act if it is not timely
raised. Id. The Commission has stated that “[b]ecause the incidents that make up a hostile work
environment claim collectively constitute one unlawful employment practice, the entire claim is
actionable, as long, as at least one incident that is part of the claim occurred within the filing
period. This includes incidents that occurred outside the filing period that the [Complainant]
knew or should have known were actionable at the time of their occurrence.” EEOC Compliance
Manual, Section 2, Threshold Issues at 2-75 (revised July 21, 2005) (citing Morgan, supra).

The record indicates that Complainant contacted an EEO Counselor regarding his hostile work
environment claim on August 31, 2018. Claim C10 of the instant complaint occurred on August
28, 2018 and is part of Complainant’s overall claim that the Agency subjected him to a
discriminatory hostile work environment. Because Complainant’s claim is an overall claim of
harassment, we find that the Agency’s dismissal was improper and effectively fragmented
Complainant’s claim of discriminatory hostile work environment.

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CONCLUSION

The Agency's final decision dismissing the formal complaint is REVERSED. The formal
complaint is REMANDED to the Agency for further processing in accordance with the ORDER
below.

ORDER (E0610)

The Agency is ordered to process the remanded claims (harassment/hostile work environment) 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
becomes final. 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 becomes final, 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.

A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights must be sent to the Compliance Officer as
referenced below.

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.
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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 6, 2019
Date