EEOC Appeal 2020000806

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Earlie C., 1
Complainant,
v.
Barbara Barrett,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 2020000806
Agency No. 6R0M1900324
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated October 16, 2019, dismissing her 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
At the time of events giving rise to this complaint, Complainant worked as a Violence Prevention
Integrator/Suicide Prevention Program Manager, GS-12, at the Agency’s Dobbins Air Reserve
Base in Marietta, Georgia.
On January 18, 2019, Complainant initiated EEO contact alleging that the Agency subjected her
to disparate treatment and hostile work environment harassment on the bases of race (African-
American) and sex (female). Subsequently, Complainant filed formally reiterating the same. 2 She
alleged discrimination when the Base Wing Commander (S1):
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 The record reveals that there were personnel changes and administrative delays in the pertinent
Equal Employment Opportunity Office, so the exact date Complainant filed her formal complaint
is unclear.

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(1) since October 2018, belittled Complainant in front of others and challenged
Complainant’s reporting instructions from Air Force Reserve Command,
(2) on October 1, 2018, refused payment on Complainant’s government credit card,
(3) in October 2018, November 2018, and January 2019, denied her use of leave,
(4) in December 2018, denied Complainant’s telework use,
(5) in January 2019, provided false, negative feedback on her mid-year evaluation,
and
(6) in July 2019 and September 2019, provided false, negative feedback on her
annual performance evaluation.
On October 16, 2019, the Agency issued a final decision dismissing Complainant’s complaint
pursuant to 29 C.F.R. §§ 1614.107(a)(1) and (5). The Agency stated:
[Complainant] failed to state a claim and/or articulate relevant information that
would allow the complaint to proceed. 	There were no personnel action or other
preliminary 	steps 	taken 	against 	employee 	that 	can 	be 	construe[d] 	as
discriminatory. . . . [B]ased on [Complainant’s] allegations, the information
provided 	did 	not 	constitute 	any 	direct 	violation 	of 	discrimination 	against
[Complainant].
The Agency provided appeal rights to the Commission at its Philadelphia District Office address
in error.
The instant appeal from Complainant followed. 	On appeal, Complainant reiterated the above
alleged adverse actions by S1 since October 2018.
ANALYSIS AND FINDINGS
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,
disabling condition, genetic information, or reprisal. 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. Dep't of the Air Force, EEOC Request No. 05931049 (April 21,
1994).
A claim of harassment is actionable 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. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

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As noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998):
“simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not
amount to discriminatory changes in the ‘terms and conditions of employment’.
After careful review of the record, we find that the incidents alleged in (3), (4), (5), and (6) state
individual claims of disparate treatment because, if proven true, they could establish a harm or loss
with respect to a term, condition, or privilege of employment. Further, specifically, the January
2019 date alleged for (3) and the dates alleged for (4), (5), and (6) are within the forty-five (45)
day statutory timeframe articulated in 29 C.F.R. § 1614.105. 	We find also that the incidents
alleged in (1) through (6) state a claim of harassment because, if proven, they are sufficiently
severe or pervasive to rise to the level of a hostile work environment.
CONCLUSION
We REVERSE the Agency's final decision dismissing Complainant's complaint and REMAND
the matter to the Agency for further processing consistent with this decision and the Order below.
Further, due to the improper Commission address given in its final decision, we remind the Agency
to provide appropriate information consistent with 29 C.F.R. § 1614, more specifically, 29 C.F.R.
§ 1614.403.
ORDER (E0618)
The Agency is ordered to process the remanded claims 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.

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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.
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.

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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.

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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
September 3, 2020
Date