Wesley P.,1 Complainant,v.Ryan D. McCarthy, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 4, 2019

2019000092 (E.E.O.C. Sep. 4, 2019)

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

Wesley P.,1
Complainant,

v.

Ryan D. McCarthy,
Acting Secretary,
Department of the Army,
Agency.

Appeal No. 2019000092

Agency No. ARKNOX18APR01381

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency’s decision dated June 28, 2018, dismissing his 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.2

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an IT Specialist at the
Agency’s Human Resources Command in Fort Knox, Kentucky.

On June 22, 2018, Complainant filed a formal complaint alleging that the Agency subjected him
to discrimination on the bases of sex (male, perceived orientation), age (61), and in reprisal for
prior protected EEO activity arising under Title VII when he was subjected to harassment which
culminated in his retirement effective March 14, 2018.

In support of his claim of harassment, Complainant included a narrative in which he asserted that

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 We note that Complainant indicated that he received the Agency’s final decision on July 10,
2018. The Agency did not challenge Complainant’s assertion. As such, we find that his appeal
filed August 8, 2018, was timely.
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he has been with the Agency for roughly 11 years and he has been subjected to harassment and
discrimination. He argued that throughout his career, he has been punished for conduct with
female employees while the female employees were not punished. He also noted that he was
subjected to more harsh treatment and complaints of harassment. However, in contrast,
Complainant indicated that younger employees who engaged in sexual misconduct are not
punished. Complainant asserted that he left the Agency out of fear that he would be removed.
Complainant sought as remedy: reinstatement, backpay, compensatory damages, removal of all
negative references, reimbursement of moving and travel expenses, and reasonable attorney’s
fees and costs.

The Agency identified Complainant’s claim of harassment and reduced his narrative to include
the following claims:

1. On or about March 25, 2018, Complainant received a copy of his “sworn statement”
requesting his signature. Complainant noted that it included questions regarding
spending the weekend with two gay men;

2. On or about March 14, 2018, Complainant was constructively discharged when he
was forced to retire;

3. On March 12, 2018, Complainant was forced to participate in an internal Agency
investigation interview where he was interrogated, denied representation, and was not
told the purpose of the interview. Complainant asserted that he was forced to answer
questions and not informed of his rights;

4. On or about January 25, 2018, Complainant heard from his Union Representative that
the Agency was planning a removal action; and

5. During the period of October 2016 to January 2017, Complainant received a
counseling and was suspended for kissing a woman in the office.

The Agency dismissed all the claims pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a
claim. The Agency noted that claims 1-4 were not sufficient to show that Complainant was
harmed. The Agency asserted that claims 1 and 3 constituted collateral attacks against another
proceeding. The Agency found that Complainant should have raised these claims in the
processes in which they arose.

The Agency then summarily dismissed claim 5 for alleging issues previously raised in a
negotiated grievance proceeding pursuant to 29 C.F.R. § 1614.107(a)(4). The Agency held that
Complainant raised the matter in a union grievance. As such, the Agency found that claim 5
should be dismissed.

The Agency also found that the matter was moot under 29 C.F.R. § 1614.107(a)(5) as
Complainant has resigned from the Agency.
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The Agency found that the retirement was not involuntary as Complainant asserted. Therefore,
the alleged violations would not recur. The Agency noted that Complainant alleged
discrimination but failed to provide any evidence that he is entitled to any relief such as
compensatory damages. As such, the Agency found that the matter was now moot.

Finally, the Agency determined that claim 4 involved a preliminary step and should be dismissed
pursuant to 29 C.F.R. § 1614.107(a)(5). The Agency found that Complainant was not removed
and not aggrieved. Therefore, the Agency dismissed the complaint as a whole.

CONTENTIONS ON APPEAL

This appeal followed without specific comment by Complainant. The Agency only provided the
Commission with the complaint file and did not make any argument in response to the instant
appeal.

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 or she has been
discriminated against by that agency because of race, color, religion, sex, national origin, age,
disabling condition, genetic information, or reprisal. 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 Commission has held that an employee cannot use the EEO complaint process to lodge a
collateral attack on another proceeding. See Wills v. Dep’t of Def., EEOC Request No.
05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept.
22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The
proper forum for Complainant to have raised his challenges to actions which occurred during the
internal investigation proceeding was in that proceeding itself. It is inappropriate to now attempt
to use the EEO process to collaterally attack actions which occurred during the internal
investigation. With respect to claims 1 and 3, we find that Complainant alleged discrimination
when he received a copy of his “sworn statement” requesting his signature and was forced to
participate in an internal Agency investigation interview. We find that these specific events
occurred in conjunction with the Agency’s internal investigation. Accordingly, we find that
claims 1 and 3 should be dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a
claim.

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In claims 2, 4, and 5 as defined by the Agency, as well as in his narrative to his formal
complaint, Complainant alleged a series of events which allegedly occurred from October 2016
to his resignation on March 14, 2018. Specifically, Complainant alleged that he was subjected to
harassment which created a hostile work environment. He argued that he was subjected to
greater punishment and investigations for alleged misconduct. As a result, he believed and heard
that he was to be removed. Therefore, he retired from the Agency. We note that the Agency
failed to identify Complainant’s claims regarding greater scrutiny and punishment. Further,
instead of treating these events as incidents of the claim of harassment, the Agency looked at
them individually. Thus, we find that the Agency acted improperly by treating matters raised in
Complainant’s complaint in a piecemeal manner. See Meaney v. Dep’t of the Treasury, EEOC
Request No. 05940169 (Nov. 3, 1994) (an agency should not ignore the “pattern aspect” of a
complainant’s claims and define the issues in a piecemeal manner where an analogous theme
unites the matter complained of). Consequently, when Complainant’s claims are viewed in the
context of Complainant’s complaint of harassment, they state a claim and the Agency’s dismissal
of those claims for failure to state a claim was improper.

Previously Raised in a Grievance Proceeding

The Agency dismissed claim 5 for alleging issues previously raised in a negotiated grievance
proceeding pursuant to 29 C.F.R. § 1614.107(a)(4). EEOC Regulation 29 C.F.R. § 1614.301(a)
states that when a person is employed by an agency subject to 5 U.S.C. § 7121(d) and is covered
by a collective bargaining agreement that permits claims of discrimination to be raised in a
negotiated grievance procedure, a person wishing to file a complaint or grievance on a matter of
alleged employment discrimination must elect to raise the matter under either part 1614 or the
negotiated grievance procedure, but not both. An aggrieved employee who files a grievance with
an agency whose negotiated agreement permits the acceptance of grievances which allege
discrimination may not thereafter file a complaint on the same matter under 29 C.F.R. Part 1614
irrespective of whether the agency has informed the individual of the need to elect or whether the
grievance has raised an issue of discrimination.

The Agency held that Complainant raised the matter in a union grievance. The Agency provided
a copy of the grievance. However, the record in this case does not contain a copy of a negotiated
agreement that provides for the acceptance of grievances which allege discrimination. It is the
burden of the Agency to have evidence or proof in support of its final decision. See Marshall v.
Dep’t of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991). Accordingly, the Agency’s
final decision dismissing claim 5 of the instant complaint is reversed. Claim 5 is remanded to the
Agency for further processing in accordance with the Order below.

Mootness

The regulation set forth at 29 C.F.R. § 1614.107(a)(5) provides for the dismissal of a complaint
when the issues raised therein are moot. To determine whether the issues raised in
Complainant’s 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 will recur; and (2)
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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); Kuo v. Dep’t of
the Navy, EEOC Request No. 05970343 (July 10, 1998). When such circumstances exist, no
relief is available and no need for a determination of the rights of the parties is presented.

The Agency also found that the complaint was moot under 29 C.F.R. § 1614.107(a)(5) as
Complainant has resigned from the Agency. The Agency found that the retirement was not
involuntary as Complainant asserted. After a review of the final decision, the Commission finds
that the Agency has addressed the merits of Complainant’s claim of constructive discharge
without a proper investigation, as required by the regulations. We find that the Agency’s
articulated reason for the action in dispute, i.e., that Complainant’s retirement was voluntary,
goes to the merits of Complainant’s complaint, and is irrelevant to the procedural issue of
whether he has stated a justiciable claim under Title VII. See Osborne v. Dep’t of the Treasury,
EEOC Request No. 05960111 (July 19, 1996); Lee v. U.S. Postal Serv., EEOC Request No.
05930220 (Aug. 12, 1993); Ferrazzoli v. U.S. Postal Serv., EEOC Request No. 05910642 (Aug.
15, 1991). As such, we cannot find that Complainant’s retirement was voluntary at this stage of
the complaint.

As Complainant has alleged that he was subjected to harassment which culminated in his
constructive discharge, we cannot find that the matter is now moot. The Agency has not shown
that interim relief or events have completely and irrevocably eradicated the effects of the alleged
discrimination. Accordingly, we find that the dismissal of the complaint as a whole pursuant to
29 C.F.R. § 1614.107(a)(5) was not appropriate.

Preliminary Step

The Agency dismissed claim 4 pursuant to 29 C.F.R. § 1614.107(a)(5). The regulation set forth
at 29 C.F.R. § 1614.107(a)(5) provides, in part, that the agency shall dismiss a complaint that
alleges that a proposal to take a personnel action, or other preliminary step to taking a personnel
action, is discriminatory. If Complainant’s claim was viewed in isolation, clearly dismissal
would be proper. We note, however, that in certain situations, an agency action that alone might
not state a claim nevertheless becomes sufficient when viewed as one incident in an alleged
pattern of harassment in conjunction with other claims. See Cobb v. Dep’t of the Treasury,
EEOC Request No. 05970077 (Mar. 13, 1997). Moreover, if a proposed action is purportedly
combined with other acts of harassment to form an alleged pattern of harassment, the agency
may not properly dismiss it as a proposed action. See Suttles v. U.S. Postal Serv., EEOC
Request No. 05970496 (Apr. 8, 1999); Butler v. Dep’t of Labor, EEOC Request No. 05891016
(Dec. 1, 1989). Consequently, when Complainant’s claim 4 is viewed in the context of
Complainant’s complaint of harassment, it cannot be considered a proposed action and the
Agency’s dismissal of that claim was improper.

Finally, we note that we asked the Agency to provide us with the complaint file within 30 days
of receipt of our letter dated October 9, 2018. The Agency provided the complaint file in July
2019 without explanation for the delay in complying.
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The Agency is reminded that under 29 C.F.R. § 1614.403(e) it must submit the complaint file to
the Commission within 30 days of initial notification that the complainant has filed an appeal.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the dismissal of claims 1 and 3. However, we
REVERSE the dismissal of claims 2, 4, and 5 in accordance with our decision and remand
Complainant’s claim of harassment for further processing as per the ORDER below.

ORDER
Given the Agency’s lengthy delay in submitting the complaint file to the Commission, we find
that the Agency must process the instant complaint expeditiously.
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 ninety (90) 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 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).
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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 (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.

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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 (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.

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.
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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 4, 2019
Date