EEOC Appeal 2020001257

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Majorie J.,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 2020001257
Agency No. FS-2019-00977
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision (Dismissal) 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 Criminal
Investigator, GS-1811-12, at the Agency’s LE&I - SW Special Agent Pacific Southwest Region
facility in Nevada City, California.
On September 23, 2019, Complainant filed a formal complaint alleging that the Agency
subjected her to discrimination on the bases of race (Asian), sex (female), religion (Not
Specified), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act
of 1964 when:
1. From May 6 through May 7, 2019, Complainant’s former supervisor (S) and a
former work colleague (WC1) attempted to interfere with Complainant’s case
work involving the U.S. Attorney’s Office.
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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2. Around the same time S sent an email stating, “We will coordinate the
discrimination from there.”
3. On May 21, 2019, S and WC1 made up false allegations and lies about
Complainant and her husband, another Agency employee, accusing them of
getting into a heated argument with another former work colleague (WC2) at
Complainant’s previous office in Flagstaff, Arizona, including accusations that
Complainant stole equipment, and lacked candor and trustworthiness, and S
reported these false allegations to Complainant’s new supervisor as well as
WC2’s supervisor.
The Agency characterized the claims differently and dismissed them for failure to state a claim,
finding that the alleged actions were insufficiently severe and/or pervasive to state a claim of
harassment. The Agency did not address whether the claims stated valid claims of reprisal.
The instant appeal followed.
ANALYSIS AND FINDINGS
We note initially that in its Dismissal, the Agency failed to address whether or not Complainant
stated valid claims of reprisal. In filing the instant complaint, Complainant alleges that S and
WC1, whom she identified as two Agency employees who discriminated against her in a prior
EEO complaint identified as Agency No. FS-2019-00191, retaliated against her as described
above. The record shows that FS-2019-00191 was currently pending before the Agency at the
time of the events at issue here.
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in part, that an Agency shall
dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any
employee or applicant for employment who believes he or she has been discriminated against by
that Agency because of race, color, religion, sex, national origin, age, disabling condition,
genetic condition, or reprisal. 29 C.F.R. §§ 1614.103, 106(a). The Commission interprets the
statutory retaliation clauses “to prohibit any adverse treatment that is based on a retaliatory
motive and is reasonably likely to deter the charging party or others from engaging in protected
activity.” EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998).
Following a review of the record we find that a former supervisor sending an email apparently
admitting to discrimination, or at most making light of, is an action reasonably likely to deter
Complainant or others from engaging in protected activity. Similarly, we find that a former
supervisor making up false allegations of theft and lack of candor, and reporting such allegations
to an employee’s current Supervisor are also actions reasonably likely to deter. We therefore find
that Complainant states valid claims of reprisal with regard to claims 2 and 3 and that such
claims must be returned for an investigation.

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We further note that, on appeal, Complainant maintains that she contacted the Agency on June 3,
2019, seeking to include the claims listed in this complaint as amendments to her existing
complaint under Agency No. FS-2019-00191. On June 6, 2019, the Agency responded stating:
We regard these allegations as additional instances of the ongoing harassment
claim that, as reflected in our March 13, 2019, Letter of Acceptance, we have
already accepted for investigation. As these allegations do not reflect a new claim
of discrimination, there is no need to amend your EEO complaint. These and any
similar incidents should be presented directly to the investigator.
Complainant maintains that when she contacted the investigator seeking to include the new
allegations, as instructed by the Agency, the investigator:
[A]dvised me that she was not permitted to add any new incidents or issues to the
complaint without the [Agency Employee Complaint’s Division (ECD)] formally
amending the complaint and giving her the additional time to investigate the new
issues. [The investigator] advised me at that time that she had to have the
completed report for Complaint No. FS-2019-00191 [returned to the Agency EEO
office] by July 5, 2019, where she was already having a difficult time completing
all of the incidents documented. [The Investigator] advised me that she would
send the ECD letter dated June 6, 2019, to her supervisor to request that [the
Agency] ECD formally add the additional items. On July 3, 2019, I was advised
by her that their request to add the additional issues listed item to USDA
Complaint No FS-2019-00977 was denied.
Complainant maintains that she then contacted the Agency ECD and told that office that the
investigator had told her that the new allegations could not be investigated without the
investigator receiving an authorization from ECD. Complainant further maintains that she again
requested to have her complaint amended so as to include the new claims. On July 25, 2019,
Complainant received a letter from the Agency stating:
At the time of your request, the investigation of this matter had concluded and the
Report of Investigation (ROI) had been issued. Pursuant to 29 C.F.R. §
1614.106(d), a complainant may amend a complaint at any time prior to the
conclusion of the investigation to include issues or claims like or related to those
raised in a complaint. Consequently, we are unable to amend the subject
complaint because your amendment request was received after the close of the
investigation. As such, this EEO complaint is no longer in our jurisdiction.
Complainant then filed the instant complaint including the listed claims as noted above, and the
Agency dismissed the clams on the grounds the allegations were insufficiently severe to state a
claim of harassment.

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We note, however, that the record shows that Complainant timely sought to amend her complaint
to include the allegations with the complaints being investigated under Agency No FS-2019-
00977 but was wrongly prevented from doing so by the Agency and the investigator. We
therefore find that the claims should be returned to the Agency to be included as amendments to
FS-2019-00977.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that claims 2 and 3 state valid claims of reprisal, and
further find that the Agency incorrectly prevented Complainant from amending her complaint
under Agency No. FS-2019-00977 to include all claims herein with that pending harassment
claim. We therefore VACATE the Dismissal and REMAND the claims for further processing in
according 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. and include the claims as amendments to Agency No. FS-2019-00977 as well as
addressing claims 2 and 3 under a reprisal analysis. 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.

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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. 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.

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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. 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
May 8, 2020
Date