U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Matt B.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency. Appeal No. 0120161243 Agency No. ARCEFTW15DEC04937 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated January 20, 2016, 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 During the period at issue, Complainant worked as a Senior Cost and Value Engineer at the Agency's Southwestern Division United States Army Corps of Engineers (USACE) facility in Dallas, Texas. On December 17, 2015, Complainant contacted an EEO Counselor. During EEO counseling, Complainant alleged that he had been subjected to a hostile work environment and discrimination. Complainant named the responsible management official (RMO) as a manager in the Chief Value Office (hereinafter referred to as RMO1). During counseling, Complainant asserted that he is frequently excluded from project communications by RMO1. Complainant also asserted that RMO1 constantly undermines him, discounts his ideas and suggestions, and treats him as if he is not good at his job. Complainant also asserted that despite having great work performance and serving on the Value Engineering Advisory Committee (VEAC) for over seven years, he was not considered for the position of Chair of the VEAC after the most recent chair stepped down. Complainant contends that RMO1 picked someone else who was a new member of the committee and had no prior Value Engineer (VE) experience. Complainant also asserted that while RMO1 has pushed for promotions for other employees, he has never supported a promotion for Complainant. On January 11, 2016, Complainant filed the instant formal complaint alleging that the Agency subjected him to discrimination on the bases of race2 and national origin. On January 20, 2016, the Agency issued its final decision. The Agency determined that Complainant's claim was comprised exclusively of the following matter: 1. On December 11, 2015, a manager in the Chief Value Office informed/confirmed with everyone via e-mail that the Agency was going to create a center of expertise (MX)3 for Value Engineer (VE) management. The Agency determined that Complainant was not aggrieved because he did not suffer a personal loss or harm with respect to a term, condition or privilege of employment, and that the claim was too vague to state any actionable claim. Therein, the Agency dismissed the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The instant appeal followed. Complainant did not raise any new contentions on appeal. ANALYSIS AND FINDINGS As a threshold matter, the Commission determines that the formal complaint was not comprised exclusively of the matter identified in the Agency's final decision. Instead, a fair reading of the pre-complaint documents and Complainant's formal complaint reflects that Complainant claimed he was harassed through a variety of events that encompassed more than the above referenced 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 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). A fair reading of Complainant's complaint reflects that Complainant alleged a pattern of harassment. In its final decision, the Agency distilled the matters raised in Complainant's formal complaint to a single allegation relating to a single email. We find, however, that Complainant's complaint is not comprised exclusively of this matter, but instead, addresses a variety of incidents preceding the denial of the meeting. For example, Complainant alleged that he is frequently left out of project communications by RMO1; that RMO1 constantly undermines him, discounts his ideas and suggestions; that RMO1 treats him as if he is not good at his job; that RMO1 does support Complainant's promotional opportunities as he does with other employees; and, that RMO1 bypassed Complainant to be the Chair of VEAC, over a newer, inexperienced employee. We find, that Complainant has stated one valid claim of harassment consisting of a series of actions as discussed in Complainant's pre-complaint and formal complaint documents. By alleging a pattern of harassment, Complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993). CONCLUSION Accordingly, the Agency's final decision dismissing the formal complaint is REVERSED. The complaint as defined herein is REMANDED to the Agency for further processing in accordance with this decision and the ORDER below. ORDER (E0610) The Agency is ordered to process the remanded claims (on the basis of race and national origin) 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 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 (M0815) 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 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, 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 (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.'s signature Carlton M. Hadden, Director Office of Federal Operations April 23, 2016 __________________ Date 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 The Agency left out the basis of race in its January 20, 2016 final decision. However, the basis of race was checked off in Complainant's formal complaint. The Agency did not expressly dismiss the basis of race. The Agency is reminded that it must clearly and explicitly dismiss issues or bases, and offer appeal rights regarding them, in order to have such allegations stated in a complaint dismissed. See Jozlin v. Department of Veterans Affairs, EEOC Appeal No. 01920040 (February 12, 1992). 3 This abbreviation was not explained in the record. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120161243 2 0120161243