EEOC Appeal 2020001598

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ricky S,1
Complainant,
v.
Betty J. Sapp,
Director,
National Reconnaissance Office,
Agency.
Appeal No. 2020001598
Agency No. NRE-0026-2019
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated November 18, 2019, dismissing her
complaint of unlawful employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as an Auditor at one of the Agency’s field offices.
On September 11, 2019, Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination based on age.
In its November 18, 2019 final decision, the Agency framed Complainant’s claims in the following
fashion:
On June 28, 2019, [a named Agency official] forced [Complainant] into involuntary
retirement by denying his request for an employment extension at [his field office].
The Agency dismissed the formal complaint for failure to state a claim. The Agency reasoned that
Complainant is not an aggrieved employee. The Agency reasoned that to the extent Complainant
was alleging that he was forced to retire, Complainant had not actually retired yet from Agency
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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employment. The Agency also set forth that to the extent Complainant alleged that he was being
reassigned to headquarters no later than October 2020, the Agency found that this was a proposed
action.
The instant appeal followed.
ANALYSIS AND FINDINGS
As an initial matter, we find that Complainant is alleging that he was subjected to an unlawful
hostile work environment. In an attachment to his formal complaint, Complainant asserts that in
February 2019, a named Agency official informed him that his position was being moved from a
field office to the Agency’s Headquarters no later than October 1, 2020. Complainant asserts that
he requested an extension to stay at the Agency’s field office until his minimum retirement age,
which an Agency official denied. Complainant further alleged that the Agency official approved
other employees’ requests for extensions. 	Finally, Complainant asserts that an Agency official
made comments that she was seeking to replace higher graded employees with lower graded
employees, which Complainant believed equated to the Agency’s official’s desire to eliminate
older employees.
We find that the Agency improperly dismissed Complainant’s complaint for failure to state claim.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the
holding of Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if
it is sufficiently severe or pervasive to alter the conditions of a complainant's employment. The
Court explained that an "objectively hostile or abusive work environment [is created when] a
reasonable person would find [it] hostile or abusive:” and the complainant subjectively perceives
it as such. 	Harris, supra at 21-22. 	Thus, not all claims of harassment are actionable. 	Where a
complaint does not challenge an agency action or inaction regarding a specific term, condition or
privilege of employment, a claim of harassment is actionable only if, allegedly, the harassment to
which the complainant has been subjected was sufficiently severe or pervasive to alter the
conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt
that the complainant cannot prove a set of facts in support of the claim which would entitle the
complainant to relief. 	The trier of fact must consider all of the alleged harassing incidents and
remarks, and considering them together in the light most favorable to the complainant, determine
whether they are sufficient to state a claim. Cobb v. Dep’t of the Treasury, EEOC Request No.
05970077 (Mar. 13, 1997).
When viewing the alleged incidents collectively, we find that Complainant has set forth an
actionable claim of harassment. While some of the incidents in question may currently be at the
proposed stage, if a proposed action is purportedly combined with other acts of harassment to form
an alleged pattern of harassment, the Agency may not properly dismiss it as a proposed action. See
Suttles v. U.S. Postal Serv., EEOC Request No. 05970496 (April 8, 1999).

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The proposed reassignment scheduled no later than October 1, 2020 is part of Complainant’s
overall hostile work environment claim.2 We find that when this incident is considered collectively
with the other alleged incidents, Complainant has set forth an actionable claim of harassment.
We REVERSE the Agency’s final decision dismissing Complainant’s complaint 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 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.
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

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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.
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).

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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
August 20, 2020
Date