U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rudy R.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120181956 Agency No. DON 18-67400-01505 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated May 14, 2018, 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 Supervisory Social Worker at the Agency's International Law Center in Okinawa, Japan. Prior to a recitation of the claims raised in the instant formal complaint, a brief review of events leading to Complainant's pursuit of the EEO complaint process may be instructive. On February 16, 2018, Complainant was issued a Memorandum for Record from the Deputy Assistant Chief for "inappropriate leadership." During the relevant period, Complainant was the first-level supervisor of an identified employee. In the Memorandum for Record, the Deputy Assistant Chief noted that Complainant was unwilling to accept the employee's questioning of his criticism of her work, and instead viewed her actions as a challenge to his authority. The Deputy Assistant Chief determined that this reflected an inability to de-escalate conflict with his subordinate employees in a professional manner that required his intervention through the formal Inspector General process. The record further reflects that the Deputy Assistant Chief directed Complainant to take a variety of mandatory trainings within the next 90 calendar days. The Deputy Assistant Chief also stated that Complainant was required to re-familiarize himself with the content of his assigned position description, and to seek any guidance necessary from his supervisory chain of command to ensure that he possessed the proper knowledge and skills to complete his duties as a leader and supervisor successfully. Further, the Deputy Assistant Chief stated that the Memorandum for Record would not be filed in his official personnel records, but would be maintained for a period of two years in his office, and may be used as the basis for administrative disciplinary action up to and including termination in the event of subsequent offenses during the relevant period. On April 10, 2018, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination on the bases of race, national origin, and sex when: a. the issuance of the Memorandum for Record dated February 16, 2018 is inappropriate because it was done at a supervisor's level without Human Resources/Employee Relations; b. the allegations in the Memorandum for Record are discriminatory because they are unsubstantiated and inaccurate; c. because the Memorandum for Record was inappropriate, it constitutes and creates a hostile work environment; d. the complaints of [former Substance Abuse Clinical Counselor (former employee)] were handled inappropriately by [Deputy Assistant Chief of Staff, Marine Corps Community Services (MCCS) Division]; e. unidentified "personnel actions" are alleged against Complainant and two others because of race; f. Complainant argues regarding his understanding of the merits of the former employee's complaints; and g. Complainant argues that the MCCS Human Resources Office's guidance regarding the complaints of the former employee was inappropriate and biased because of sex, creating a hostile work environment; In in its May 14, 2018 final decision, the Agency dismissed claims a - c and e pursuant to 29 C.F.R. § 1614.107(a)(5), finding that Complainant alleged a proposal to take a personnel action was discriminatory. Further, the Agency dismissed claims d and f - g for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1), finding that Complainant was not aggrieved. The instant appeal followed. ANALYSIS AND FINDINGS Claims a - c and e The regulation set forth at 29 C.F.R. § 1614.107(a)(5) provides, in part, 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. After a review of the record, we find that the Agency improperly dismissed claims a - c and e on the grounds set forth in its decision. The matters identified in these claims are not in essence "proposed" Agency actions but instead, are completed Agency actions embodied and memorialized as follows. Specifically, a February 16, 2018 Memorandum for Record (MFR) in question was formally prepared on the Agency's official stationary and signed by the Deputy Assistant Chief. Both the tone and content of the memorandum suggest it is disciplinary in nature, and not merely instructive or cautionary. In the memorandum, for example, the Deputy Assistant Chief placed Complainant on notice that "[his] leadership approach toward managing conflict with this employee, created several unacceptable liabilities for this MCCS activity...after careful review of the information provided by the references, along with my consideration of your position as a senior leader on my staff, I am issuing this MFR to impress upon you the seriousness of your actions and to advise you that future conduct of this nature will not be tolerated. If such conduct continues, you may be subject to appropriate disciplinary action, up to and including termination [emphasis added]." Furthermore, we note that the Agency merely suggested that the memorandum was not associated with Complainant's Official Personnel File. However, the memorandum was placed in the Deputy Assistant Chief's office for two years to be considered in future disciplinary actions, indicating it was more than a proposed action. Claims d and f - g The Agency improperly dismissed claims d and f - g for 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). A fair reading of the instant formal complaint and EEO Counselor's Report reflect a detailed series of alleged incidents. Specifically, Complainant stated that he was constantly subjected to harassment by Agency management. In his complaint, Complainant stated that the Deputy Assistant Chief "alleges an unacceptable emotional response to professional work place conflict. The claims in this section of the MFR, as written, are unsubstantiated speculative conjecture demonstrating a biased view of my intent and motive in favor of [former employee]." As a remedy, Complainant requested that the February 16, 2018 Memorandum for Record to be destroyed, that he not to be required to attend mandatory training, and be awarded compensatory damages. 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). We REVERSE the Agency's final decision dismissing Complainant's formal complaint, defined herein as a harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (E1016) The Agency is ordered to process the remanded claim (harassment/hostile work environment) in accordance with 29 C.F.R. § 1614.108et 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. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations September 7, 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 0120181956 6 0120181956