A. Marques Pitre Wins EEOC OFO Appeal Reversing Army’s Inappropriate Dismissal Of Their Federal Employee Client’s Formal EEO Complaint –See Craig Spencer, A.K.A., Herman P.1 V. Eric Fanning, Acting Secretary, Department Of The Army, EEOC Appeal No. 0120160606, Agency No. ARLEAD15SEP03570 (Feb. 23, 2016).
In Spencer, the EEOC OFO stated the following:
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed at the Agency’s Letter Kenny Depot in Chambersburg, Pennsylvania.
On September 17, 2015, Complainant went to the EEO office to express his concerns to the EEO Chief about his work environment and that he wanted to resign. The EEO Chief suggested that Complainant return to his management to request a transfer to another location. On September 24, 2015, Complainant requested that an informal EEO complaint be processed regarding his claim of harassment due to his race, sex, disability, and prior EEO activity. He noted that employees and management in his work area were trying to intimidate him by coughing when they walked by his work area. He also alleged that they were monitoring his emails and phone calls. He even asserted that he was being followed both at work and at home. The following day, management indicated to the EEO Office that they had a reassignment for Complainant. Subsequently, on September 23, 2015, Complainant resigned.
On September 29, 2015, the Agency sent Complainant a Notice of Right to File a formal complaint. On October 21, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Black), sex (male), disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when he was subjected to harassment. In his formal complaint, Complainant indicated that the harassment led him to seek employment outside of the Agency.
The Agency dismissed the complaint pursuant to 29 CFR 1614.107(a)(2) for failing to raise the matter with an EEO Counselor. As such, the Agency dismissed the matter.
This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. 1614.107(a)(2) states that an agency shall dismiss a complaint that raises a matter that has not been brought to the attention of an EEO counselor and is not like or related to a matter that has been brought to the attention of an EEO counselor. Upon review of the record, we find that the Agency’s dismissal was not appropriate.
The record showed that Complainant contacted the EEO Chief on September 17, 2015, regarding his claim of harassment. The EEO Chief sent Complainant back to the workplace and suggested that he resolve the matter with management. Complainant returned to the EEO Chief on September 24, 2015, in order to proceed with a claim of harassment based on his race, sex, disability and prior EEO activity. It was the EEO Chief who closed the informal EEO process and issued Complainant a Notice of Right to File a formal complaint when the EEO Chief learned that Complainant had resigned. Based on the Notice, Complainant filed his formal complaint alleging that he was subjected to harassment and that the harassment led to his constructive discharge from the Agency. We find that such a claim was brought to the attention of the EEO Chief. Furthermore, Complainant ‘s claim of constructive discharge is like and related to his claim of harassment. As such, we determine that the Agency’s dismissal of Complainant’s claim of harassment including his claim of constructive discharge based on his race, sex, disability and prior EEO activity was not appropriate.
CONCLUSION
Based on a thorough review of the record, we REVERSE the Agency’s final decision and REMAND the matter for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R.1614.103.The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. 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 becomes final, 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.
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.
Craig Spencer a.k.a, Herman P.1 v. Eric Fanning, Acting Secretary, Department of the Army, EEOC Appeal No. 0120160606, Agency No. ARLEAD15SEP03570(Feb. 23, 2016).
[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.