EEOC Appeal 2020000881

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alejandro B.,1
Complainant,
v.
Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.
Appeal No. 2020000881
Agency No. DON196220403603
DECISION
Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or
“Commission”) from the Agency's September 18, 2019, dismissal of 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., Section 501 of the Rehabilitation Act of 1973
(“Rehabilitation Act”), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as the Director, Security
& Emergency Services, GS-14, at the Marine Corps Logistics Base ("MCLB") in Barstow,
California.
On September 5, 2019, Complainant filed a formal complaint alleging that the Agency subjected
him to harassment on the bases of sex (male), physical disability (100% disabled veteran), age
(64), and reprisal for prior protected EEO activity when:
a. 	On July 9, 2019, Complainant received a memo from the Police Chief stating that
the Commanding Officer (“CO”) said he believed Complainant would retire in
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.

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August, or he would reassign Complainant to the Mission Assurance Director
(“MAD”) position.
b. 	On June 27, 2019, Complainant received an email from CO, outlining his
realignment plan.
c. 	On June 21, 2019, Complainant received a statement from the Base Supply
Officer stating CO said that Complainant had commented that he planned to retire
soon, 	and 	that 	he 	(CO) 	would 	facilitate 	that 	retirement, 	it 	was 	time 	for
Complainant to move on, and that if Complainant did not retire S1 would offer
him the MAD position.
On July 9, 2019, Complainant received a “Memo for the Record,” dated May 17, 2019, from the
retired Police Chief, recounting a May 16, 2019 meeting with CO prior to his retirement, where
they discussed potential replacements and CO’s plans for MCLB. According to the Police Chief,
CO said that Complainant informed him that he intended to retire in August 2019. If not, CO
said he would reassign Complainant to the position of Mission Assurance Director (“MAD”).
The Police Chief told CO that he was skeptical Complainant would actually retire, and that
Complainant 	probably 	would 	not 	like 	the 	reassignment. 	CO 	responded, 	“well 	perhaps
[Complainant] would retire instead of taking the reassignment.”
On June 20, 2019, CO called the Base Supply Officer into a meeting and informed him that he
would not assign him to the role of the Director, S-4, Maintenance Management Officer (vacated
by the new police chief), as previously discussed. In a written account of the interaction the Base
Supply Officer states that CO indicated that he intended to fill all civilian director positions at
MCLB with active duty military, and stated, “if [Complainant] chooses not to retire that he will
offer him the [MAD position] which is a lower graded position.”
On June 27, 2019, CO emailed Complainant, stating his concerns that the MAD position, which
is critical to maintaining operations during a crisis has been vacant and that there is “much work
to be done” in the position. He suggests that “when we have a well seated and competent Police
Chief and Fire Chief, gapping the SES Director billet to fill the MAD position may be prudent.”
He asks to meet to discuss the “pros/cons and trade-offs.”
According to the EEO 	Counselor’s Report, 	CO confirmed that he intended to reassign
Complainant to the MAD position regardless of his plans to retire, based on operational needs,
and 	Complainant’s 	knowledge 	and 	tenure 	with 	the 	MCLB. 	CO 	also 	confirmed 	that
Complainant’s paygrade would not be lowered as a result of the reassignment.
Complainant argues that Claims a, b, and c all indicate that CO intends to reassign him to MAD
as a way to force him to retire. Complainant also contends that CO has no intention of gapping
his SES Director position, and will backfill it once he reassigns Complainant to MAD.

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The 	Agency 	dismissed 	the 	complaint, 	pursuant 	to 	29 	C.F.R. 	§ 	1614.107(a)(5), 	finding
Complainant’s complaint described a proposed personnel action.
The instant appeal followed.
ANALYSIS AND FINDINGS
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, unless the complaint alleges that the proposal
or preliminary step is retaliatory.
Here, claims a, b, and c all refer to the same proposed personnel action – reassignment to the
MAD position – and there is no evidence that the Agency took any concrete action to effectuate
this reassignment. Therefore, dismissal under 29 C.F.R. § 1614.107(a)(5) is proper, except for
Complainant’s allegation of unlawful retaliation for engaging in protected EEO activity. As such
we modify the Agency’s dismissal decision to remand his retaliation claim for investigation and
further processing.
New Issues Raised on Appeal
On appeal, Complainant raises new claims of harassment, discrimination, and retaliation by CO,
that occurred after he filed his formal complaint. 	As the allegations were not included in the
complaint before us, they will not be adjudicated in this decision. Hall v. United States Postal
Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003). If Complainant wishes to pursue these
new claims in an EEO complaint, then he must contact an EEO Counselor pursuant to 29 C.F.R.
§ 1614.105.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED in
part and REVERSED in part. Complainant’s retaliation claim is REMANDED to the Agency for
further processing pursuant to the following Order.
ORDER (E1016)
The Agency is ordered to process the remanded claims (claims 1-3 on retaliation only) 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.

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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 (K0618)
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). 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;

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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 (T0900)
This decision affirms the agency's final decision/action in part, but it also requires the agency to
continue its administrative processing of a portion of your complaint. You have the right to file a
civil action in an appropriate United States District Court within ninety (90) calendar days from
the date that you receive this decision on both that portion of your complaint which the
Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. 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
your appeal with the Commission, until such time as the agency issues its final decision on your
complaint. 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. If you file a request to reconsider and also file a civil action,
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.

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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
August 20, 2020
Date