EEOC Appeal 2019005185

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
Shantel H.,1
Complainant,
v.
Chad F. Wolf,
Acting Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.
Request No. 2019005185
Appeal No. 0120181619
Agency No. HS-FEMA-01125-2014
DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120181619 (June 25, 2019). EEOC
Regulations provide that the Commission may, in its discretion, grant a request to reconsider any
previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting
party demonstrates 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. See 29 C.F.R. § 1614.405(c). The Agency’s request for
reconsideration is DENIED. However, the Commission reopens this case on its own motion;
REVERSES in part and VACATES in part the previous decision; and REMANDS the complaint
in part for further processing.
ISSUES PRESENTED
The issues presented are whether the decision in EEOC Appeal No. 0120181619 should be
reconsidered on the grounds that it was based on a clearly erroneous interpretation of material fact
or law, or that the decision will have a substantial impact on the policies, practices, or operations
of the Agency; and whether the appellate decision should be vacated on the grounds that it was
based on a clearly erroneous interpretation of material fact or law.
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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BACKGROUND
At the time of events giving rise to the underlying complaint, Complainant worked as a Tribal
Liaison Specialist, GS-12, with the Agency’s Region X office in Bothell, Washington.
On April 4, 2014, Complainant initiated contact with an EEO Counselor. Complainant stated that
she was subjected to discrimination and a hostile work environment based on race, disability, and
opposition to what she believed to be discriminatory practices directed toward her assigned tribes.
On April 24, 2014, Complainant alleged that she was subjected to a hostile work environment
based on race, disability, and prior EEO activity when she was demoted from working in the field,
excluded from meetings, and limited in her email communications.
Formal Complaint
On May 23, 2014, Complainant filed an EEO complaint alleging discrimination on the bases of
race, color, religion, national origin, sex, age, disability, and reprisal. Complainant added a
handwritten notation stating, “AI/AN and tribes.” In a narrative attached to her complaint,
Complainant alleged that she reported her concerns regarding tribal barriers to accessing FEMA
services, aid, and benefits to ensure compliance with Title VI of the Civil Right Act and the
Americans with Disabilities Act. Complainant further alleged that she passed along reports of
discrimination against American Indian/Alaska Native tribes. Complainant stated that her reports
resulted in a hostile work environment and retaliation.
First Partial Acceptance
On July 31, 2014, the Agency informed Complainant of its partial acceptance of her EEO
complaint. The Agency stated that it had accepted Complainant’s claims of discrimination on the
basis of retaliation (EEO activity/opposition). In a footnote, the Agency explained that
“Complainant identifie[d] her EEO activity as opposition for reporting discriminatory practices
involving issues surrounding American Indian/Alaska Native (AI/AN) tribal communication,
trust, and access to reported tribal barriers to FEMA services, aid, and benefits during FEMA-
4168-DR-WA.” The accepted claims were as follows:
1. On July 16, 2014, Complainant learned that she was not on the list of those interviewed for
position FEMA-14-LDC-37217-DEU, for which she applied. In May 2014, the Director
of External Affairs, Complainant’s supervisor, discouraged her from applying for the
position and raised obstacles to her being considered as a qualified individual by changing
the position description to remove skills related to tribal work;
2. On July 5, 2014, Complainant learned that her supervisor denied her Within Grade
Increase;
3. On June 24, 2014, in a meeting with her supervisor and the Deputy Regional Administrator
(DRA), Complainant was asked to sign a six-page memo related to her Q1 performance

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review, without initially being given the opportunity to read or discuss it. After some
discussion, the DRA permitted Complainant to take 45 minutes to read the memo, which
indicated that Complainant’s performance was “less than expected,” and that she was no
longer proficient in any of the required competencies;
4. On May 15, 2014, during her performance review, Complainant’s supervisor told her that
she was not performing the core competencies of her position, although he had not
discussed this with her previously. When Complainant asked why she was being denied
access to the tribal community, he responded that someone asked him to “pull
[Complainant] out,” although he declined to reveal who made that request; and
5. From April 2014 and ongoing, Complainant claimed repeated harassment by her
supervisor, and cited the following incidents, including but not limited to, when he:
a. Subjected her to heightened scrutiny such as: requiring her to copy him on all
emails, and when he increased his examination of her work products;
b. Demoted her from working in the field; isolated and excluded her from internal and
external working partners, including denial of access to, and communication with,
American Indian/Alaska Native tribal community; excluded her from participating
in tribal field meetings, from portions of her work, and from discussions and
problem solving with others;
c. Failed to communicate and address her work and the restrictions he placed upon
her, which negatively impacted her effectiveness and morale;
d. Negatively attributed issues raised by two tribes to her;
e. Called her back from an approved assignment to return to the Joint Field Office,
where he assigned her to assist interns copying papers for briefing packets;
f. Isolated her office into a small room apart from other staff when the office staff
relocated to another venue; and
g. Excluded her from participation in, and attendance at, a visit to the disaster site by
the President of the United States, while others were permitted to attend; and
attendance at the Tribal Public Health Emergency Management Conference.
In the partial acceptance letter, the Agency informed Complainant that the portions of her
complaint related to unfair or discriminatory treatment of other individuals (i.e., AI/AN tribal
partners) were dismissed for failure to state a claim, because Complainant failed to show direct
personal harm with respect to a term, condition, or privilege of employment as a result of the
alleged agency actions with AI/AN tribal partners.

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The partial acceptance letter requested that Complainant inform the Agency within seven days if
the complaint’s allegations had not been correctly identified. Complainant raised no objection to
the Agency’s description of her allegations.
Second Partial Acceptance
On September 8, 2014, the Agency issued Complainant an additional notice of partial acceptance
in response to emails Complainant submitted on July 29, August 25, and August 27, 2014. The
Agency informed Complainant that the claims identified as accepted in the July 31, 2014 remained
accepted and would be investigated along with the following additional claims:
1. On July 24, 2014, in a staff meeting about fire emergencies in eastern Washington State,
Complainant’s supervisor excluded her from a disaster assignment. Others on the team,
along with FEMA Corps staff, were assigned to the Emergency Management Division,
Emergency Operations Center (EMD/EOC) Camp Murray site, although Complainant was
available and offered to attend. This ongoing exclusion from internal and external partners
denied Complainant training and teambuilding opportunities afforded to others;
2. On July 24, 2014, in a meeting with her supervisors to review Q2 performance, her
supervisor continued to withhold training courses, which he had previously agreed to in
Complainant’s Individual Development Plan (IDP). Complainant’s supervisor told her that
her EEO complaint had no merit; that Complainant was not really working out; and that
Complainant would not work out anywhere in FEMA. Complainant regarded these
comments as threats to her employment. When Complainant requested to review the line
items on her supervisor’s six-page memo, he said, “Do you think I have to justify my
decisions to you?”;
3. On August 11, 2014, the Director of External Affairs, Complainant’s supervisor, removed
her from attendance and participation at the National Tribal Emergency Management
Conference in Spokane, Washington, when he requested that Complainant’s flight
departure be changed from Sunday to Tuesday. This caused Complainant to miss out on
activities and a tribal emergency management course with tribal partners scheduled for
Monday and Tuesday; and
4. On August 11, 2014, Complainant’s Q1 and Q2 performance review folders were
negatively changed in the online employee review folders.

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Third Partial Acceptance
On October 29, 2014, the Agency informed Complainant that it had accepted the following
additional claims:
1. On October 2, 2014, Complainant’s supervisor issued Complainant a Notice of
Termination of Appointment. Additionally, during the previous month, the Deputy
Regional Administrator (DRA) did not remove herself from the decision in the termination
appeal and in the EEO mediation process; and
2. On or about September 2, 2014, after Complainant discussed her EEO complaint with the
DRA during a meeting, and the DRA retaliated against Complainant when her complaints
about a hostile work environment were not taken seriously and nothing was done to stop
the hostile work environment. During the meeting, the DRA appeared angry and called
Complainant “obnoxious.” The DRA also told Complainant that she was not loyal because
she chose to forward her EEO complaint to Region X. Additionally, the DRA advised
Complainant to drop the issue and forgive her supervisor for what he did during and after
the reporting of discrimination because Complainant truly could not understand how
difficult their jobs were.
Investigation
In each acceptance letter, Complainant was advised to review the accepted claims to be
investigated. The Agency informed Complainant that if she was not satisfied with the claims as
identified, she would have five calendar days to submit written clarification of her claims. Based
upon the three partial acceptance letters, the Investigator investigated a total of 11 claims based on
reprisal (EEO activity and opposition). Complainant did not address the exclusion of the additional
alleged bases of race, color, religion, national origin, sex, age, and disability. Consequently, those
matters were not investigated on these bases.
Administrative Judge’s (AJ) Decision
Complainant moved for default judgment based on the length of time the Agency took to complete
its EEO investigation. The Agency moved for a decision without a hearing, stating that
Complainant could not establish a prima facie case of retaliation and she could not prove that the
Agency’s legitimate, nondiscriminatory reasons for the termination of her appointment were
pretext for retaliation. On March 12, 2018, an AJ issued an Order of Dismissal, making no ruling
on the issue of timeliness and dismissing Complainant’s complaint on a jurisdictional matter. The
AJ noted that while Complainant made EEO contact, she complained of discrimination in the
manner FEMA distributed goods toward another group of people and not as a result of any type of
employment action or relationship. The AJ determined that this did not qualify as protected
activity under Title VII.

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Appellate Decision
On appeal, Complainant contended that the AJ erred in failing to find that the Agency improperly
framed the basis of her complaint and did not consider additional claims under the basis of
association. Complainant maintained that her association with the tribes caused her supervisor to
subject her to discrimination. The Commission reversed the dismissal of Complainant’s
complaint, finding that Complainant alleged harassment and retaliation for reporting claims
against American Indian and Alaskan Native tribes receiving FEMA disaster services. The
Commission determined that Complainant engaged in protected activity when she raised
objections that the Agency’s practices allegedly discriminated against American Indians and
Alaska Natives.
ARGUMENTS ON RECONSIDERATION
In its request for reconsideration, the Agency contends that the appellate decision failed to explain
how opposing allegedly discriminatory practices related to recipients of federal disaster aid
qualified as an employment practice under Title VII. The Agency argues that the decision involves
a clearly erroneous interpretation of the law, as Complainant’s claims of opposition to
discrimination do not relate to an employment relationship. The Agency notes that Title VI is the
controlling law under which Complainant opposed allegedly discriminatory practices and her
claims are protected under federal whistleblower protections and not Title VII. The Agency asserts
that Complainant failed to engage in protected EEO opposition because her opposition was
informing her supervisor of what she believed to be discriminatory practices directed toward her
assigned tribes. According to the Agency, Complainant was aware that the conduct she opposed
was not protected by Title VII; moreover, American Indian tribal governments are excluded from
the protections of Title VII. The Agency contends that the appellate decision is inconsistent with
the Commission’s own case law and it provides examples of dismissals of complaints based on
whistleblowing activity, refusal to participate in illegal sharing of proprietary information, political
views, union membership, and issuance of taxpayer funds. The Agency concludes that the AJ’s
decision was proper and should be upheld.
In response to the Agency’s request for reconsideration, Complainant asserts that the appellate
decision was correct in applying a broad application of Title VII. Complainant contends that the
Agency relies on caselaw regarding underlying issues unrelated to complaints of discrimination
while she complained about the Agency discriminating against members of a protected class.
Complainant avers that her claims should be processed as complaints of employment
discrimination because of her association with Native American Indians/Alaska Natives.

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ANALYSIS
Reprisal Discrimination
The Agency argues that Complainant’s complaint should be dismissed on the grounds that
Complainant is alleging reprisal for whistleblower activity and not prior protected EEO activity.
We do recognize that the record includes overwhelming evidence that Complainant believed the
Agency subjected her to discrimination and a hostile work environment once she disputed the
Agency’s treatment of American Indian/Alaska Native tribes. The previous decision found that
raising objections that the Agency’s practices discriminated against American Indian/Alaska
Native tribes constituted protected activity under Title VII. However, a claim of whistleblowing
does not state a reprisal claim over which the Commission has jurisdiction. Only allegations of
reprisal due to opposing practices made unlawful by Title VII of the Civil Rights Act, the Age
Discrimination in Employment Act, the Equal Pay Act, the Rehabilitation Act, the Genetic
Information Nondiscrimination Act, or for participating in any administrative or judicial
proceedings under those statutes states a claim under these laws. 29 C.F.R. §1614.101(b). As
such, the Commission has previously held that whistleblower activities are outside the purview of
the EEO complaint process. Giannou v. Dep’t of Housing and Urban Development, EEOC
Request No. 05880911 (Feb. 13, 1989).
Here, Complainant alleged that the Agency retaliated against her for raising concerns with the
distribution of disaster relief funding to American Indian/Alaska Native tribes. The alleged
reprisal is not based on Complainant’s race, color, religion, sex, national origin, age, genetic
information, or disability. To the extent that Complainant alleges that the Agency subjected her
to discrimination and a hostile work environment based on her reports of discriminatory conduct
against American Indian/Alaska Native tribes, we determine that dismissal was proper. We further
agree with the Agency, and Complainant’s own assertions, that Title VI of the Civil Rights Act of
1964 is the statute that is applicable to those allegations.
We note, however, that the AJ failed to consider all the investigated claims and improperly
dismissed the complaint in its entirety. Regarding Complainant’s additional claims, which the AJ
did not consider, we recognize that there is an issue regarding whether Complainant engaged in
prior protected activity, but this issue goes to the merits of the complaint and does not determine
the procedural issue of whether the complaint stated a justiciable claim under the EEO laws. See
Tim H. v. U.S. Postal Serv., EEOC Appeal No. 0120180329 (Feb. 7, 2018). A review of the record
reflects that Complainant asserted that the reprisal stemmed from both her whistleblower activity
(opposition to FEMA practices in relation to distribution to American Indian/Alaska Native tribes)
and her subsequent EEO activity. Specifically, Complainant asserted that the disputed actions
occurred both following her whistleblowing activities and after she filed an EEO complaint.
Accordingly, the accepted claims indicated that Complainant alleged reprisal based on both EEO
activity and opposition. To the extent Complainant is alleging reprisal for filing the instant
complaint, Complainant has engaged in protected activity and has stated actionable claims.

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Associational Discrimination
As for Complainant’s argument that the Agency failed to consider her allegations of associational
discrimination on the bases of race and national origin, we note that the Commission gives broad
application to the court’s decision in Sanchez v. Standard Brands, Inc., 431 F.2d 455, 465 (5th Cir.
1970). Under Sanchez, complainants are given liberal latitude to clarify the bases of
discrimination in their complaint, and to add bases of discrimination after filing their complaint.
The Sanchez court explained that there are at least three reasons why a complainant may fail to
identify a basis of discrimination in a complaint. First, a complainant may not be aware of an
employer’s motivation. Second, a complainant may not fully comprehend the distinction between
bases. Finally, a complainant may be unschooled and unsophisticated in the use of forms.
Applying Sanchez, the Commission has held that a complainant may amend his or her complaint
to add or delete bases without changing the identity of the claim. See, e.g., Dragos v. U.S. Postal
Serv., EEOC Request No. 05940563 (Jan. 19, 1995).
Here, Complainant initially alleged multiple bases, but failed to correct the Agency within the
applicable time period when it did not consider bases other than reprisal. However, on appeal,
Complainant alleged that she should have been offered an opportunity to reframe her claims to
allege associational discrimination based on her association with American Indian/Alaska Native
tribes. Complainant contended that not only was she was subjected to harassment based on her
opposition on behalf of the tribes, but also due to her personal relationship and association with
the tribes. We find that this basis was improperly excluded when considering Complainant’s
claims. Therefore, we find that not only did the AJ improperly fail to consider Complainant’s
claims on the basis of reprisal for protected activity, but the AJ failed to consider Complainant’s
claims on the additional basis of association with American Indian/Alaska Native tribes.
CONCLUSION
After reviewing the previous decision and the entire record, the Commission finds that the request
fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to
DENY the request. We reopen the case on our own motion to REVERSE the previous decision
with respect to reprisal based on whistleblower activity related to American Indian/Alaska Native
tribes, thus affirming the Agency’s dismissal of this claim. The remainder of the previous decision
is VACATED, and the complaint REMANDED in part to address the claims related to
Complainant’s own EEO activity and additional bases, in accordance with the ORDER herein.
There is no further right of administrative appeal on the decision of the Commission on this
request. The Agency shall comply with the Order as set forth below.
ORDER
Within 30 days of the date this decision is issued, the Agency shall submit to the Hearings Unit of
the EEOC Seattle Field Office a request for a hearing, along with a copy of the complaint file, and
a copy of this decision. The Agency shall provide written notification to the Compliance Officer
at the address set forth below that the request and complaint file have been transmitted to the
Hearings Unit.

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Thereafter, the EEOC Administrative Judge shall issue a decision on the complaint in
accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance
with 29 C.F.R. § 1614.110.
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). 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.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (Q0610)
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 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.

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“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:
______________________________ Bernadette B. Wilson
Bernadette B. Wilson
Executive Officer
Executive Secretariat
May 27, 2020
Date