Complainant,

v. 

Sally Jewell,
Secretary,
Department of the Interior
(Bureau of Indian Affairs),
Agency.

Appeal No. 0120142360

Agency No. BIA130350

DECISION

Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated May 14, 2014, 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. 

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisor, Education Research Analyst, at the Agency's Bureau of Indian Education in Albuquerque, New Mexico.  

On September 19, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of sex (male) and reprisal for prior protected EEO activity.


The Agency dismissed the complaint for failure to state a claim. In doing so, the Agency characterized Complainant's claims as follows:

1. on or about May 2, 2013, the Special Assistant, Bureau of Indian Education (female) filed a false report with the tribal police accusing Complainant of assaulting her; and
2. the Special Assistant widely emailed members of the Bureau of Indian Education, falsely claiming that Complainant had assaulted her, thus damaging Complainant's professional reputation.
The Agency found that Complainant failed to allege he incurred a harm or loss as a result of the Special Assistant's actions. The Agency further found Complainant was alleging retaliation for engaging in whistleblower activity which is outside of the purview of statutes enforced by the Commission.  

The instant appeal followed.

ANALYSIS AND FINDINGS

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

As an initial matter, we find that a fair reading of the complaint and related EEO counseling report indicates that the Agency characterized the instant complaint too narrowly in supporting its dismissal decision.  We find that the complaint is not limited to the actions of the Special Assistant in accusing Complainant of assault and filing a report with the police.  Rather, we that Complainant is also challenging the actions of management, especially those of the Acting Director, Bureau of Indian Education, who he alleges did not take adequate actions in response to the behavior of the Special Assistant and, allegedly, proceeded to retaliate against him for challenging the Special Assistant's conduct.  Among the alleged actions, Complainant charges that the Acting Director and other management officials removed Complainant's responsibility for certain contracts, imposed new duties on his unit that had previously been performed by contractors, and denied legitimate travel requests, including that needed to attend highly specialized training in Complainant's area of expertise.  Moreover, we note that Complainant had indicated that some of these actions occurred after he sought EEO counseling to challenge the actions of the Special Assistant and were in retaliation for seeking that counseling. This broader view of Complainant's allegations is clearly sufficient to state a viable claim of an ongoing hostile work environment based on his sex and/or unlawful retaliation.

Finally, we note that in certain circumstances the Commission has found that damage to a complainant's reputation may be sufficient to invoke the protections of the EEO process even absent any adverse actions by the Agency. See generally Lorusso v Department of Defense, EEOC Appeal No. 01953224 (March 13, 1996), Simmons v. United States Postal Svc., EEOC Appeal No. 01940750 (October 4, 1994), Duhamel v Unites States Postal Svc., EEOC Appeal No. 01945168 (January 25, 1995), Festa v. Department of Defense, EEOC Appeal No. 01932315 (July 13, 1993). As Complainant points out in his brief, the potential harm to Complainant's reputation in the instant case is arguably more pronounced than in any if the cited cases because the emails allegedly sent by the Special Assistant alleged that Complainant committed a crime, the emails could be forwarded to other employees creating a potentially vast number of recipients, and the emails were allegedly sent to senior management officials. 

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Dismissal and REMAND the claim for further processing in according with this decision and the Order below.

ORDER (E0610)

The Agency is ordered to process the remanded claims (as redefined in the decision) 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 (K0610)

Compliance with the Commission's corrective action is mandatory.  The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013.  The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant.  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.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)

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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).  All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013.  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 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 (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 (Z0610)

If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security.  See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).  The grant or denial of the request is within the sole discretion of the Court.  Filing a request for an attorney with the Court does not extend your time in which to file a civil action.  Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").

FOR THE COMMISSION:


______________________________
Carlton M. Hadden, Director
Office of Federal Operations

December 16, 2014

__________________
Date

 

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




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