EEOC Appeal 2020001939

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Tyree B., 1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2020001939
Agency No. 2003-0674-2019105323
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated December 10, 2019, 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 Lead Medical Support Assistant at the
Agency’s Austin Outpatient Clinic in Austin, Texas.
On November 27, 2019, Complainant filed the instant formal complaint. Complainant alleged that
he was subjected to sexual harassment/a hostile work environment based on sex (male).
In the instant final decision, the Agency determined that the formal complaint was comprised of
the following claim:
on August 21, 2019, the Administrative Officer failed to take appropriate correction
action when Complainant reported that the Supervisory Medical Support Assistant
sent him a photo of herself in a tight fitting spandex.
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.

2020001939	2
The Agency dismissed the formal complaint for failure to state a claim, pursuant to 29 C.F.R. §
1614.107(a)(1), finding Complainant was not aggrieved.
The instant appeal followed.
ANALYSIS AND FINDINGS
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 Agency improperly dismissed the complaint for failure to state a claim. A fair reading of the
formal complaint and the related EEO counseling report indicate that Agency erred in its
constricted definition of Complainant’s claim. A more accurate definition of the claim is one of
an ongoing pattern of sex-based harassment of which the incident addressed in the Agency’s
dismissal was but an example. However, Complainant also alleged that he has been subjected to
harassment by the Supervisory Medical Support Assistant, also his supervisor, for several years.
Complainant, through his representative on appeal, explained in addition to the most recent
incident, he did not go into detail about how in the past [supervisor] has touched his leg with
comments about how she shouldn’t have done that, and incidents in the past where [supervisor]
wore loose fitting blouses and made comment about how her breasts are showing. One incident
was for a fact finding and witnessed “by [Complainant’s representative] where [supervisor] had
repeated wardrobe malfunctions and was continuously pulling her blouse up drawing attention to
her chest area.”
Further, Complainant stated that when he reported the inappropriate picture the supervisor sent
him, he was accused of having an ulterior motive. He noted that the supervisor was detailed to a
different workplace briefly but she returned to his workplace. 	He requested to be transferred
several times but the Administrative Officer did not take any action. 	He stated that the
Administrative Officer claimed that it was likely the supervisor was jealous of other female
employees getting close to him. 	Finally, Complainant argued that “he has a right to work in a
hostile free work environment and the Agency has a responsibility to provide him with a safe place
to work.” As a remedy, Complainant requested that the harassment cease, and be transferred to a
different supervisor.
By alleging such a pattern of harassment, Complainant has stated a cognizable claim under the
EEOC regulations. See Cervantes v. United States Postal Service, EEOC Request No. 05930303
(November 12, 1993).

2020001939	3
CONCLUSION
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 (E0618)
The Agency is 	ordered 	to 	process 	the remanded 	claim 	(sexual 	harassment/hostile work
environment) 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.
As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency
must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to
Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of
rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s
request for a FAD, or a statement from the agency that it did not receive a response from
complainant by the end of the election period.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. 	Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
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).

2020001939	4
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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.
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).

2020001939	5
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 2, 2020
Date