U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Buck S.,1 Complainant, v. Ryan D. McCarthy, Acting Secretary, Department of the Army, Agency. Appeal No. 0120172248 Agency No. ARSTEWART16NOV04363 DECISION On Monday, June 12, 2017, the Equal Employment Opportunity Commission (EEOC or Commission) received Complainant's timely appeal from a final Agency decision (FAD) dated May 10, 2017, dismissing his equal employment opportunity (EEO) complaint of unlawful employment discrimination. BACKGROUND At the time of events giving rise to his EEO complaint, Complainant was employed by the Agency as an Engineering Technician (Planning and Estimating), GS-11 in Fort Stewart, Directorate of Public Works, in Georgia. On February 6, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against him based on reprisal for prior protected EEO activity when a supervisor (S2) subjected him to a hostile work environment by being the catalyst for the Department of Defense making a preliminary decision dated September 16, 2016, revoking his eligibility for access to classified information and/or assignment of duties that have been designated national security sensitive. The Agency dismissed the complaint for concerning a preliminary step to take a personnel action and mootness. Regarding mootness, it reasoned that on February 23, 2017, the Department of Defense, based on Complainant's response, reversed its preliminary decision, an interim event that completely and irrevocably eradicated the effects of the alleged discrimination, and there was no reasonable expectation that the revocation would occur again. The instant appeal followed. Complainant argues that the issue in his complaint is that he was subjected to a hostile work environment in reprisal for his EEO activity in 2014, not whether he was able to secure a favorable clearance decision, and there is a reasonable expectation that S2 will continue to perpetuate a hostile work environment against him. In support of this, Complainant referenced a private website S2 runs where she cyberbullies him by slanderously accusing him of theft and other things, causing him and his family embarrassment in Church, the community, and at his and his wife's jobs for over four years.2 He argues that the reversal of the preliminary decision to revoke his clearance did not completely eradicate the effects of the alleged discrimination. In opposition to the appeal, the Agency argues that the FAD should be affirmed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(5) provides that an 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. However, the regulation further provides that it does not apply where, like the instant matter, the complaint "alleges that the proposal or preliminary step is retaliatory." Furthermore, the Commission has stated that a complaint may not be dismissed under this section when the complainant alleges that the preliminary step was taken to harass the individual for a prohibited reason because in such a case, the agency's action has already affected the employee. 57 Fed. Reg. 12643. Rodriguez-Soto v. Dep't of the Army, EEOC Request No. 05960646 (Oct. 8, 1998). Given this, we reverse the Agency's dismissal made pursuant to the action being a preliminary step to take a personnel action. EEOC regulation 29 C.F.R. § 1614.107(a)(5) also 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 fact finder must ascertain whether (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur; and (2) 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. Department 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. We agree with Complainant that his complaint is not moot. In EEO counseling and his EEO complaint, Complainant indicated that previously, based on S2's accusations, he was subjected to a CID investigation and suspension of his clearance, and was informed in May 2014 that the CID investigation was closed and his security clearance restored. On appeal, he elaborates the suspension occurred based on S2's lies to the CID in 2012, and her allegations on her private website. In the instant complaint, Complainant indicated that S2 again fabricated information which caused the investigation to be reopened, attempting to get his security clearance revoked a second time. Further, to this day, S2 runs an active private website accusing Complainant of theft, inappropriately touching a female employee, and acts or omissions that indicate unreliability or untrustworthiness. Given this, we find it cannot be said with assurance that there is no reasonable expectation that the alleged violation will recur. Further, as relief, Complainant in part requested compensatory damages, which has not been addressed. Accordingly, the FAD is REVERSED. ORDER (E1016) 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 one hundred fifty (150) 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. 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 (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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). 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 November 9, 2017 __________________ 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 On November 8, 2017, we reviewed the website online. The homepage thereof has titles in bold lettering reading "FEDERAL GOVERNMENT CORRUPTION IN SMALL TOWN GEORGIA" and "AN INCREDIBLE STORY OF CRONYISM, COLLUTION, & CORRUPTION AT FORT STEWEART, GEORGIA." On the homepage, there are tabbed pseudonyms for Complainant, S2's supervisor, two other current or former Fort Stewart staff, and a vendor who serves Fort Stewart. The page on Complainant has pictures of his vehicle and home, and S2 accuses him of theft, inappropriately touching a female employee on two occasions - once on the chest, once on the rear, and complains that while she gave Complainant a performance rating of Successful in November 2012, a fraudulent mediation raised it to Exceptional. S2 further wrote on the webpage that Complainant is in a position of public trust that requires a security clearance, that when the Agency's Criminal Investigative Division (CID) called him into questioning about the theft he refused to speak, that instead of removing him the Agency only suspended him 3 days, that she rated Complainant Highly Successful for (fiscal year) 2013, and upper management - the "Good Ole Boys" network - is in the process of overruling her and again raising it to Exceptional. In capitalized red lettering, S2 in the private website accuses Complainant of criminal or dishonest conduct, and acts or omissions that indicate unreliability or untrustworthiness, and so forth. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120172248 2 0120172248