Yun C.,1 Complainant,v.Ryan D. McCarthy, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 4, 2019

2019001059 (E.E.O.C. Sep. 4, 2019)

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

Yun C.,1
Complainant,

v.

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

Appeal No. 2019001059

Agency No. ARAPG18JUL02596

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency’s decision dated September 12, 2018, regarding 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Engineer, GS-
0801-15, at the Agency’s Aberdeen Proving Ground in Maryland.

On July 5, 2018, Complainant contacted the EEO Counselor alleging discrimination. She
asserted that the Director has been denying her meetings, trainings, and conferences for over ten
months. She also indicated that she has been denied the opportunities to speak in front of her
peers and to meet with them. She claimed that this has negatively impacted her ability to meet
the objectives of her position. When the matter was not resolved informally, the EEO Counselor
issued a notice of right to file a formal complaint. On August 29, 2018, Complainant filed a
formal complaint alleging that the Agency subjected her to discrimination on the basis of sex
(female) when:

1. On June 22, 2018, the Director denied Complainant the opportunity to attend the OSD-

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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Systems Engineering Meeting in the NCR from June 26-27, 2018;

2. On June 18, 2018, the Director denied Complainant the opportunity to speak at the Army
Science & Technology Conference in the NCR August 21-23, 2018;

3. On June 18, 2018, the Director non-concurred Complainant’s conference attendance;

4. On March 6 or 7, 2018, Complainant received an angry email from the Director saying he
was blindsided by her speaking at their meeting. He told Complainant to cancel her
orders and berated her in the email because she should have others review her slides
ahead of time; and

5. In December 2017, Complainant was not extended the common courtesy by the Director
to attend the Defense Management Conference that a coworker did not attend.

The Agency dismissed claims 1-3 pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a
claim. The Agency summarily stated that Complainant failed to show that she was harmed by
the alleged events. The Agency then dismissed claims 4 and 5 pursuant to 29 C.F.R.
§ 1614.107(a)(2) for failing to raise these claims with the EEO Counselor within 45 calendar
days of the events.

CONTENTIONS ON APPEAL

Complainant appealed, asserting that she alleged discrimination in claims 1, 2, and 3 when she
was denied training, conferences, and workshops she needed to meet her performance standards
for October 2017 to June 2018. As for claims 4 and 5, Complainant asserted that she did not
learn of the pattern of discrimination until the events in claims 1, 2, and 3 occurred. Therefore,
she argued that these claims should be restored as a pattern of discrimination. She asked that the
Commission remand the complaint as a whole for an investigation. The Agency did not submit
any statement or brief in response to Complainant’s appeal.

ANALYSIS AND FINDINGS

Dismissal of Claims 1, 2, and 3

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).
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In Cobb v. Dep’t of Treasury, EEOC Appeal No. 01960215 (March 13, 1997), the Commission
stated that, “terms, conditions or privileges of employment include, inter alia, promotion,
demotion, discipline, reasonable accommodation, appraisals, awards, training, benefits,
assignments, overtime, leave, tours of duty, etc.” and that, “[a] complaint that alleges unlawful
disparate treatment regarding a specific term, condition, or privilege of employment should not
be dismissed for failure to state a claim.” (emphasis added).

Upon review of the record, we find that the Agency improperly dismissed claims 1, 2, and 3 as
these claims clearly state a claim pursuant to Title VII. As such, we reject the Agency’s final
decision.

Dismissal of Claims 4 and 5

EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states that the Agency shall dismiss a complaint or
a portion of a complaint that fails to comply with the applicable time limits contained in 29
C.F.R. § 1614.105, § 1614.106 and § 1614.204(c), unless the Agency extends the time limits in
accordance with 29 C.F.R. § 1614.604(c).

EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides that an aggrieved person must initiate
contact with an EEO Counselor within 45 days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within 45 days of the effective date of the
action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to
extend the time limit if Complainant can establish that Complainant was not aware of the time
limit, that Complainant did not know and reasonably should not have known that the
discriminatory matter or personnel action occurred, that despite due diligence Complainant was
prevented by circumstances beyond her control from contacting the EEO Counselor within the
time limit, or for other reasons considered sufficient by the Agency or Commission.

We note that the Supreme Court of the United States held that a complainant 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 Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 117 (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.” Id. The Court defined such “discrete discriminatory acts” to include acts
such as termination, failure to promote, denial of transfer, or refusal to hire, acts that constitute
separate actionable unlawful employment practices. Id. Finally, the Court held that such
untimely discrete acts may be used as background evidence in support of a timely claim. Id.

Upon review, we find that Complainant alleged that the Director has been denying her the
opportunity to attend meetings, trainings, and conferences for several months. The Agency
broke up Complainant’s claim into several events listed as 1 through 5.

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We find that, to the extent Complainant has alleged discrimination with respect to claims 4 and
5, these claims as discrete events are untimely raised and the Agency’s dismissal of claims 4 and
5 was appropriate. However, we note that these claims should be used as background evidence
to Complainant’s timely claims raised, namely claims 1, 2, and 3.

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. In
this case, the agency did not submit the file until July 19, 2019, more than seven months after the
Commission’s notification of the appeal.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s dismissal of claims 4 and 5. However,
we REVERSE the dismissal of claims 1, 2, and 3 and REMAND these claims for further
processing in accordance with 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.
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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 (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.
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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).
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