U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Trevor F.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Health Agency), Agency. Appeal No. 0120180166 Agency No. DHANCR170046 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated August 16, 2017, dismissing his complaint aleging 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 in Medical Instrument Technology at the Agency's Walter Reed National Military Medical Center/Sleep Disorders Center in Bethesda, Maryland. On June 25, 2017, Complainant filed a formal complaint. Complainant claimed that the Agency subjected him to discrimination based on race and sex when: 1. on January 26, 2017, Complainant walked into the Sleep Disorder Center breakroom when he found two coworkers (hereinafter referred to as "CW1" and "CW2") engaged in a conversation. He asked if he should leave, and they said no. A few minutes later, CW2 became very agitated and grabbed CW1 by his lab coat, pulled him closer to her, and with an angry expression on her face said something to the effect of, "I know it's your fault, you're a man. I don't know what's wrong with [coworker], but you need to fix this, Nigger! You need to fix this!" CW2 then turned to Complainant and said, "You better not talk about me" as she exited the breakroom; 2. on February 28, 2017, Complainant emailed the Manager and requested that CW2 be removed from the control room as her presence made him and CW1 feel very uncomfortable and agitated around her as she was constantly looking at the both of them with what Complainant interpreted to be disgust in her eyes, making for a very tense situation; and, 3. on July 11, 2017, Complainant received an email from management requesting his resume to allow them to review his qualifications and experience to better match him for suitable positions upon being notified of his request for reasonable accommodation. On August 16, 2017, the Agency issued a final decision dismissing the complaint to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The Agency determined that Complainant was not aggrieved as there was no tangible harm to a term, condition, or privilege of employment or severe or pervasive enough harassment that would alter a term or condition of his employment. The instant appeal followed. Complainant asserted that he did not agree with the framing of the claims, and the absence of reprisal as a basis, which Complainant asserted had been discussed with an EEO Counselor. Complainant asserts that he "has never in his professional career felt so blatantly disrespected. He was deeply offended by [CW2's] use of the racial epitaph..." Complainant asserted that CW2 made the work place very tense, was constantly looking at CW1 and him with disgust, and directly threatened him when she said, "you better not talk about me." Complainant further asserted that despite management being aware of the situation "no relief" was provided. Additionally, on June 12, 2017, Complainant notified EEO personnel that "there [have] been a couple attempts to retaliate and harass me and other individuals involved in the EEO complaint." Complainant stated that he has been under a reasonable accommodation plan for three years with no problems, and suddenly, for "no articulable reason, the Agency asked [Complainant] to re-submit his medical documents and reasonable accommodation request and, after [Complainant] complied, the Agency attempted to change his hours and reassign him." The Agency provided a response brief, and noted that Complainant's appeal was untimely, and should also be dismissed on those grounds. ANALYSIS AND FINDINGS As a preliminary matter, we note that the record demonstrates that Complainant's appeal to the Commission was timely. 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 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). The Commission finds that a fair reading of Complainant's complaint reflects that Complainant alleged a pattern of harassment by both CW2 and management. In its final decision, the Agency distilled the matters raised in Complainant's formal complaint to only actions based on his race and sex allegedly committed by CW2 but did not discuss reprisal as a basis. Here, Complainant alleged that CW2 used an extreme racial slur, threatened him not to "talk about her", which he interrupted as not to report her to management, and then continuously looked at CW1 and him with "disgust" following his complaint. Complainant asserted that the work place felt very tense, and he did not feel that management provided any support. Complainant also asserted that he felt targeted for retaliation after pursuit of his complaint. Specifically, he noted that he had a reasonable accommodation on file for the preceding three years, and that he had no problems with the accommodation until his complaint. Following his complaint, he felt that management was suddenly making changes to his plan. Based on the following, we determine that Complainant has addressed a personal loss or harm to a term, condition or privilege of employment for which there is a remedy. We determine further that the subject claim has been articulated with sufficient clarity. Furthermore, based on CW2's alleged use of the racial slur, threat, and behavior towards CW1 and Complainant, we determine that Complainant has stated a valid claim of harassment, 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 Complainant's complaint is REVERSED. The complaint is hereby REMANDED to the Agency for further processing with the addition of reprisal as a basis in accordance with this decision and the ORDER below. ORDER (E1016) The Agency is ordered to process the remanded claims 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 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 Carlton M. Hadden, Director Office of Federal Operations January 9, 2018 __________________ 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 0120180166 6 0120180166