EEOC Appeal 2020000756

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Wade H.,1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 2020000756
Hearing No. 450-2018-00401X
Agency No. 2017-27509-FAA-05
DECISION
On October 10, 2019, Complainant, through his attorney, filed a timely appeal with the Equal
Employment Opportunity Commission (EEOC or Commission) from a final Agency decision
(FAD) dated September 6, 2019, dismissing his complaint of unlawful employment discrimination
in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Airway
Transportation Systems Specialist, FV-2101-H at the Agency’s Waterloo System Support Center
in Waterloo, Iowa.
On December 15, 2017, Complainant filed an equal employment opportunity (EEO) complaint
alleging, in relevant part, that the Agency subjected him to harassment based on his disability
(cancer), age (70 & 71), and reprisal for prior protected EEO activity from May 25, 2016 –
November 30, 2017, as illustrated, but not limited, to the following:
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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1. On or about May 25, 2016, he was required to attend a Weingarten meeting.2
2. On August 4, 2016, Complainant’s second-line supervisor (S2) issued him a notice of 10-
day suspension decision for misusing a GOV (government vehicle).
3. In January 2017, Coworker (CW) 1 and CW 2 were talking to each other about the
Agency’s efforts to increase hiring at Waterloo, and CW 1 directed a remark at
Complainant that two young guns could be hired for the price of one. He believed this
implied his salary could pay for two new employees if he retired.
4. On or about January 31, 2017, he left a unit meeting led by S1 to get away from a heated
confrontation between CW 3 and Union Official 1. Days later S1 told him he should have
been charged with absence without leave (AWOL) and could have been reprimanded.3
5. On February 15, 2017,4 CW 2 (who helps take care of the Radar facility) escorted S2,
Complainant’s third-level supervisor (S3), the Safety and Environmental Compliance
Manager, and Air Route Traffic Control Center Technical Operation Manager to the Radar
facility for a site visit regarding an Unfavorable Condition Report. After assessing the
inside of the facility, they stepped outside and Complainant arrived. Even though he knew
Complainant accidentally damaged the roof, S2 pointed to some damage along the edge
thereof and asked him who did it to discredit him.
6. In April – May 2017, he realized that someone was repeatedly entering the engine generator
room and he did not know why, but this was evidenced by lights being left on after he left
for the day, and he worried someone may be trying to set up the equipment to fail so he
would be blamed.5
7. On September 7, 2017, someone put a radar display in the engine generator room. He
advised CW 1 that it needed to be removed by 6:30 AM on Monday, September 11, 2017,
so he could perform maintenance on the engine generator. When he arrived in the morning
2 Complainant’s concern appears to be that the meeting was not rescheduled so Union Official 1
could attend in person as his representative. It went ahead as scheduled and Union Official 1
attended by telephone.
3 No actual action was taken against Complainant.
4 This issue was defined as occurring on March 22, 2017, but S2 clarified it was on February 15,
2017.
5 Complainant did not indicate the equipment failed or that he was blamed for a failure.

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on September 11, 2017, the display was still there, and he could not move it, which
interfered with his ability to do the maintenance.6
8. While performing maintenance on the engine generator on September 12, 2017, he noticed
circuit breakers were not in the position he left them. He suspected CW 4 did this. Also,
on September 25, 2017, the Airport Traffic Control Tower engine generator would not start
because someone put the engine generator cutoff switch in the off position, which was
either an honest mistake by someone who was inexperienced or done to discredit him.
9. On October 26, 2017, S2 issued him a Letter of Confirmation of Discussion for failing to
be courteous and respectful to S2 when he was discourteous to him on August 23, 2017,
and for calling S2 a liar at Weingarten meeting conducted by management (not S2) on
September 27, 2017, about the above discourteous interaction. S2 warned in the Letter that
he could have considered all this to be a second offense of misconduct, and proposed
discipline, but instead decided to issue the Letter which is not formal discipline, albeit
further misconduct will result in disciplinary action.
10. He told management, including S2, numerous times that he felt the work environment was
hostile, but his complaints were ignored.
11. On November 30, 2017, S2 advised him that Air Traffic Control Tower personnel told him
that he and Union Official 1 were in the Tower at 6:30 PM the night before (Complainant’s
normal shift ended at 4:30 PM).
12. He believed the fuel line he checked on November 29, 2017, leaked because CW 3 may
have loosened the line and forgot about tightening it.7
Complainant filed a motion on May 1, 2019, with the AJ to amend his EEO complaint (which the
AJ accepted over the Agency’s objection) to add to his harassment claim that he was:
13. subjected to discrimination when he was forced to resign (retire) – constructively
discharged - effective January 3, 2019.
Following an investigation of issues 1 - 12, the Agency provided Complainant with a report of
investigation (ROI) and the right to request a hearing before an Administrative Judge (AJ) with
the EEOC.
6 Complainant conceded that he and CW 1 later moved the radar display, and Complainant was
able to complete maintenance, and does not claim any consequences from the delay.
7 We have modified language in the issues to reflect Complainant’s clarifications in his affidavit
and add the identity of people involved.

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After the AJ accepted Complainant’s amendment, she dismissed his hearing request without
prejudice, citing 29 C.F.R. §1614.302. The AJ explained that the constructive discharge claim
made the EEO complaint mixed, giving the Merit Systems Protection Board (MSPB) jurisdiction.
The AJ advised that if the MSPB declines to accept jurisdiction, Complainant had 30 days from
the Board’s declination to renew his hearing request. The AJ directed the Agency to issue a FAD
on the merits of each issue in the complaint, or, as appropriate, the rationale for dismissing any
claims.
The Agency found that the AJ incorrectly ruled issues 1 – 12 were mixed because the MSPB does
not have jurisdiction over them. Nevertheless, it dismissed Complainant’s entire complaint,
finding as follows. First, Complainant failed to timely initiate EEO counseling on issues 1 – 6
since he initiated EEO counseling on August 4, 2017, beyond the 45-day time limit. Second, prior
to filing his EEO complaint, Complainant filed grievances in the negotiated grievance procedure
on issues 1 – 10, which constituted an election of the grievance process on them. Third, issues 11
and 12 fail to state a claim because they do not rise to the level of actionable harassment. Fourth,
the AJ incorrectly accepted issue 13 as an amendment to Complainant’s complaint because it did
not grow out of his harassment claim. Complainant’s group was realigned in February 2018,
placing him under a different set of management officials, and the last incident of harassment in
his complaint occurred over a year before he retired. Even if the date Complainant filed his
amendment was construed as being the date he initiated EEO counseling, he failed to do so within
the 45 calendar day time limit.
The Agency gave Complainant appeal rights to this office, not the MSPB. The instant appeal
followed.
ANALYSIS AND FINDINGS
As an initial matter, we agree with the Agency that issues 1 – 12 are not mixed. Harassment is not
an action over which the MSPB typically has jurisdiction, and the Commission long ago
abandoned the practice of non-appealable claims being found to be “inextricably intertwined” with
appealable claims. Jillian B. v. Navy, EEOC Appeal No. 0120170532 (Apr. 30, 2019).
On appeal, Complainant contends that taken together, the decisions of the AJ and Agency have
cut off his path to bring his mixed case complaint in any administrative forum. He observes that
the AJ ordered he could not refile his hearing request unless the MSPB denied jurisdiction over
his complaint, but the FAD dismissed his entire complaint with no appeal rights to the MSPB.
In her decision, the AJ properly gave the Agency the option of dismissing issues in Complainant’s
complaint, as appropriate. Where an Agency dismisses an entire complaint under 29 C.F.R.
§1614.107, as it did in this case, it must give rights to the EEOC. 29 C.F.R. § 1614.110 (b). The
Agency correctly did not give appeal rights to the MSPB.
A hostile work environment is composed of a series of separate acts that collectively constitute
one “unlawful employment action.” National Railroad Passenger Corporation v. Morgan, 536 U.S.

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101, 117 (2002). In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court
reaffirmed its holding that harassment is actionable if it is sufficiently severe or pervasive to alter
the conditions of the complainant's employment. The Court explained that an "objectively hostile
or abusive work environment [is created when] a reasonable person would find [it] hostile or
abusive” and the complainant subjectively perceives it as such.
We find that the matters in issues 5 – 8 and 12 are not hostile or abusive in nature, and that a
reasonable person would not find them so. Accordingly, we do not consider them as part of any
potential actionable harassment claim, and they are dismissed for failure to state a claim. 29 C.F.R.
§ 1614.107(a)(1).
Issue 3 regards CW 1 directing a remark to Complainant that the Agency could hire two young
guns for the price of one. We view this remark as an isolated event and not part of a hostile work
environment claim because the only other incident involving CW 1 as a perpetrator was not
abusive or hostile in nature. The issue 3 remark alone, made by a coworker with no authority over
Complainant, was not sufficiently severe or pervasive to rise to the level of actionable harassment.
S1’s comment to Complainant, days after he abruptly left a meeting, that he should have been
charged AWOL and could have been reprimanded (issue 4) was also an isolated incident since the
only other incident involving S1 concerned union representation rights, not similar in nature and
which, as recounted in the paragraph directly below, fails to state a claim. This statement alone,
even said in anger, is not sufficiently severe or pervasive to rise to the level of actionable
harassment. Likewise, we agree with the Agency that issue 11 fails to state a claim. While being
told he should not enter the Air Traffic Control Tower after his work hours unless he had an
operational reason to do so was perhaps off-putting, we do not view it as part of any actionable
harassment claim. Complainant does not contend that this prevented him from doing anything he
desired, such as socializing with coworkers.
Issue 1 regards S1 scheduling a Weingarten meeting in May 2016, without sufficient notice for
Complainant to secure Union Official 1 as his in person representative, resulting in him attending
by telephone because S3 denied his rescheduling request. This allegation fails to state a claim
because it uses the EEO process to collaterally attack the negotiated grievance procedure process,
i.e., the right to union representation outside the EEO process is determined by interpreting the
collective bargaining agreement (CBA) in the negotiated grievance procedure. Sadler v. USPS,
EEOC Appeal No. 0120130801 (Apr. 26, 2013) (EEO complaint claim about denial of a union
representative is a collateral attack on the negotiated grievance process). Accordingly, issue 1 is
dismissed for failure to state a claim. 29 C.F.R. § 1614.107(a)(1).
Issue 10 fails to state a claim. While management’s failure to stop knowingly unwelcome
harassment can result in the imputation of liability to an Agency, failure to take action is not an
independently actionable claim.

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EEOC Regulation 29 C.F.R. §1614.301 requires that where a person is employed by an agency
subject to 5 U.S.C. § 7121(d) and is covered by a collective bargaining agreement (CBA) that
permits allegations of discrimination to be raised in the negotiated grievance procedure, an election
must be made to proceed under either the negotiated grievance procedure or the EEO complaint
procedure (part 1614). Under the regulation, an election is indicated by the filing of a written
complaint or timely grievance, whichever is done first. It also provides that an aggrieved employee
who files a grievance with an agency whose negotiated agreement permits the acceptance of
grievances which allege discrimination may not thereafter file a complaint on the same matter
under part 1614 irrespective of whether the agency has informed the individual of the need to elect
or whether the grievance has raised an issue of discrimination.
On appeal, Complainant concedes that at all times relevant he was a member of the Professional
Aviation Safety Specialist bargaining unit, and that the CBA allows allegations of discrimination
to be raised in the negotiated grievance procedure.
Complainant filed the following grievances. Grievance 1, filed on July 26, 2017, regarded
Successor S1, the day before, after saying he looked everywhere and could not find nor contact
Union Official 1, that he wanted to speak to later alone, interrupting Complainant’s conversation
with Union Official 1 in rude and insolent manner and ordering him to leave in a raised and
aggressive voice in a way that belligerent and disrespectful. Grievance 2, filed on October 11,
2017, concerned the Weingarten meeting of September 27, 2017, a mandatory or discretionary
prerequisite for the Letter of Confirmation of Discussion (issue 9). In the grievance Complainant
asserted it was S2 who was intimidating, harassing, confrontational and inappropriate on August
23rd, what he said was not intended to be irresponsible nor defamatory, and he had a right to free
expression. Grievances 3 and 4, filed on November 13, 2017, regarded the October 26, 2017 Letter
of Confirmation of Discussion – the first that his first name being misspelled by S2 in the Letter
which he found insulting, abusive and disrespectful, and the second the Letter itself.
The Agency found that Complainant elected to file grievances on complaint issues 1 – 10 because
he filed the grievances before the EEO complaint, both concerned a hostile work environment, the
same time period – mid 2016 to November 2017, perceived mistreatment by S2, and issues 1 – 10
were either specifically raised in the grievances or inextricably intertwined therewith.
On appeal, Complainant argues that none of the accepted incidents in his EEO complaint are the
same as those covered by the grievances, and the determination of what is covered should be based
on the complaint incidents identified and accepted by the Agency, not anything else. In opposition
to Complainant’s appeal, the Agency reiterates the findings in its FAD. It accurately counters, in
part, that both Grievance 4 and complaint issue 9 regard the same thing – the Letter of
Confirmation and Discussion. Accordingly, issue 9 is dismissed. 29 C.F.R. 107(a)(4) and .301(a).
We agree with the Agency that Complainant failed to timely initiate EEO counseling on the August
4, 2016 decision to suspend him for 10 days (issue 2) since he initiated EEO counseling on August
4, 2017, long past the 45 day time limit. 29 C.F.R. § 1614.105(a)(1) and .107(a)(2).

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This is true even if Complainant alleged issue 2 strictly as part of a hostile work environment and
not as independently actionable, it is not part of a common theme we can discern connected a
timely incident that has not already been dismissed herein.8
We agree with the Agency that Complainant failed to timely initiate EEO counseling on his
constructive discharge claim. His group was realigned in February 2018, placing him under a
different set of management officials, and the last incident of harassment in his complaint occurred
over a year before he retired. So it cannot fairly be viewed as part of the harassment claim in his
EEO complaint. Constructive discharge is independently actionable, and is a discrete employment
action. As argued by the Agency, the earliest contact Complainant made that could be deemed an
EEO contact was when he raised it at the initial conference before the AJ on April 16, 2019, beyond
the 45 calendar day time limit from his January 3, 2019 retirement date.
The FAD is AFFIRMED, albeit partly for the reasons detailed above.
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.
8 Because we dismissed issues 1 – 10, except issue 9 for reasons other than Complainant elected
the grievance process, we need not determine whether the Agency properly dismissed them for
this reason. Likewise, because we dismissed issues 1 – 6, except issue 2 for reasons other than
failure to timely initiate EEO counseling, we need not determine whether the Agency properly
dismissed them for that reason.

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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 (S0610)
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. 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. If you file a request to reconsider
and also file a civil action, 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 7, 2020
Date