EEOC Appeal 2020000609

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jaunita W,1
Complainant,
v.
Ryan D. McCarthy,
Secretary,
Department of the Army,
Agency.
Appeal No. 2020000609
Agency No. ARREDSTON19MAY02075
DECISION
On September 20, 2019, Complainant appealed with the Equal Employment Opportunity
Commission (“EEOC” or “Commission”) from the Agency's July 19, 2019 dismissal of 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.2
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a General Engineer
NH-04, at the Agency’s Space and Missile Defense Command (“SMDC”) Future Warfare Center,
Decision Support Directorate, located in Redstone Arsenal, Alabama.
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 We exercise our discretion to accept this appeal as timely because the Agency did not dispute
Complainant’s statement on appeal, that she received its Final Decision on August 21, 2019. See
29 C.F.R. § 1614.402(a) (appeals to the Commission must be filed within 30 calendar days after
the complainant receives notice of the Agency's final action); Williams v. Dep’t of Def., EEOC
Request No. 05920506 (Aug. 25, 1992) (An agency always bears the burden of obtaining sufficient
information to support a reasoned determination as to timeliness).

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On July 1, 2019, Complainant filed a formal complaint alleging that the Agency subjected her to
discrimination on the bases of sex and reprisal for engaging in prior EEO activity when:
On April 16, 2019, she became aware that she was not given an opportunity to
compete for the position of Supervisory Operations Research Analyst, NH-04,
(“Division 	Chief”) 	within 	the 	SMDC 	Future 	Warfare 	Center’s 	Models 	&
Simulations Branch, as the position had been non-competitively filled through an
Agency Internal Canvas on December 7, 2018.
The Agency dismissed the complaint for failure to state a claim, citing 29 C.F.R. § 1614.107(a)(1).
ANALYSIS AND FINDINGS
The Commission 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) We find
Complainant meets this burden, particularly where on appeal, she explains that she met
qualification requirements for the position that the male selectee did not, yet she was not afforded
an opportunity to compete.
On appeal, the Agency attempts to reframe Complainant’s complaint, reasoning in its dismissal
that Complainant never applied for the position at issue, and therefore cannot claim nonselection.
Complainant challenges S2’s non-competitive selection process, which by definition did not
provide her with an opportunity to apply for the position. 	Regardless, by explaining why
Complainant was not selected, the Agency is addressing the merits of Complainant’s complaint,
which is irrelevant to the procedural issue of whether she has stated a viable claim under Title VII
and the 29 C.F.R. Part 1614 regulations. See Osborne v. Dep’t of the Treasury, EEOC Request
No. 05960111 (July 19, 1996), Lee v. United States Postal Serv., EEOC Request No. 05930220
(Aug. 12, 1993); Ferrazzoli v. United States Postal Serv., EEOC Request No. 05910642 (Aug. 15,
1991).
We also note, as Complainant is raising a reprisal claim, that we have long held that adverse actions
need not qualify as "ultimate employment actions" or materially affect the terms and conditions of
employment to constitute retaliation. Lindsey v. United States Postal Serv., EEOC Request No.
05980410 (Nov. 4, 1999). Instead, claims based on statutory retaliation clauses are reviewed “with
a broad view of coverage. Under Commission policy, a complainant is protected from any
retaliatory discrimination that is reasonably likely to deter… complainant or others from engaging
in protected activity.” Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar.
29, 2007).
Here, the official who conducted the December 7, 2018 Agency Internal Canvas and made the
noncompetitive selection was Complainant’s second level supervisor (“S2”), the Director,
Decision Support Directorate, Future Warfare Center, SMDC. When S2 conducted the Agency
Internal Canvas, he was aware that Complainant had named him as a responsible management

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official in pending and past EEO complaints. We find the alleged act of excluding Complainant
from consideration in the canvas, or alternately denying her an opportunity to compete for a
position that would advance her career, to be reasonably likely to deter Complainant or others from
engaging in the EEO process and therefore states a viable allegation of unlawful retaliation that
requires investigation and further processing.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED and
the complaint is REMANDED to the Agency for further processing in accordance with this
decision and the ORDER below.
ORDER (E0618)
The Agency is ordered to process the remanded claims 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).

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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. 	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.

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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. 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 10, 2020
Date