EEOC Appeal 2020001569

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Wilfred M., 1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.
Appeal No. 2020001569
Agency No. EU-FY19-346
DECISION
On December 3, 2019, Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final Agency decision dated November 7, 2019,
dismissing his 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 was employed by the Agency as
a Transportation Assistant, GS-2102-07 at the Europe-East District, Stuttgart School Bus Office
in Stuttgart, Germany.
On April 19, 2018, Complainant filed equal employment opportunity (EEO) Complaint EU-FY18-
035, with amendments made through December 10, 2018 (Complaint 1), alleging he was subjected
to discrimination and harassment based on his race (African-American), sex (male), age, and
reprisal for prior EEO activity when, in relevant part:
A. Since April 2013, he has been forced to perform GS-09 duties while he is paid as a GS-07.
B. On December 17, 2017, he learned that while he applied for the position of Transportation
Operations Specialist, GS-2150-09 in Stuttgart, Germany, he improperly was not placed
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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on the Certificate of Eligible candidates therefore dated December 26, 2017 (Agency
Request No. 17-2023486-LJDl, Vacancy ID 2023486) (to be reviewed by the selecting
official, Complainant’s second line supervisor (S2)), nor selected (the person Complainant
identified as the selectee was selected on January 4, 2018, effective April 1, 2018).
C. After the Transportation Operations Specialist, GS-2150-09 in Stuttgart Germany resigned
on July 6, 2018, Complainant competitively applied therefore but was not chosen by the
selecting official, his first line supervisor (S1).
D. On October 18, 2018, he learned he was not selected by S1 for the Transportation
Operations Specialist, GS-2150—09 position in Stuttgart, Germany, under Request
Number 18AUG37XHE1254010751 (the record reflects the selectee was competitively
selected effective February 17, 2019, for a rotation not to exceed May 18, 2019) from
Certificate of Eligible candidates 20180919-CBIY-003 dated September 19, 2018. 2
Following an investigation, in relevant part of these accepted claims on August 13, 2019,
Complainant requested a hearing before an Administrative Judge (AJ) with the EEOC, which is
pending (EEOC Hearing No. 570-2019-01521X).
Meanwhile, on October 26, 2019, Complainant filed Complaint 2, the one before us, alleging that
the Agency subjected him to discrimination and harassment based on his race (African-American),
sex (male), age (over 40), and reprisal for prior protected EEO activity under Title VII and the
ADEA when from 2017 onward:
1. 	S1 and S2 forced him to perform the duties of a GS-9 while being paid as a GS-7.
2. 	He was not selected for promotion, i.e., the Agency did not properly (a) advertise
vacancies, (b) determine who to place on certificates of eligible candidates (to be reviewed
by the selecting official), (c) choose who to interview, and (d) S1 and S2 failed to choose
the best qualified candidate.
3. 	S1 and S2 interfered with his performance, second guessed him, and treated him with
disrespect, as illustrated, but not limited to:
a. 	After a teacher booked and secured personal transportation outside the purview of
the Bus Office, in May 2019, he was notified a school trip was requested for the
same thing – an error, and without investigation S1 accused him of not doing his
job, directed him to book the trip which resulted in a double booking, and then
asked him to talk to the bus company to ensure the school was not double charged
for the error Complainant tried to avoid;
2 Complainant alleged either that this position was not advertised or S1 failed to inform him it was
advertised so he could apply.

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b. 	S1 declined to sign his Department of Defense Dependent Schools (DODDS)
Softball European Tournament travel duty orders (TDY) on May 28, 2019, and
called him a liar; and
c. 	In August 2019, he requested to have a smartboard and overhead projector installed
in the Bus Office to display to customers visual cues of bus stop locations, and S2
denied the request.
The Agency dismissed issues 1 and 2 because they stated the same claim that was pending before
the EEOC in Complaint 1. On issue 2 the Agency referred to the EEO counselor’s report which
reflected Complainant verbally said he was passed over for multiple promotions from December
2018 onward, but did not identify them. The Agency dismissed issue 3 because all the incidents,
even taken together, did not rise to the level of actionable harassment.
The instant appeal followed. In his appeal and brief, Complainant avers he provided the Agency
with “Supplemental Responses to Agency’s Questions”. Therein, regarding issue 2, Complainant
specified that he applied twice for the position of Transportation Operation Specialist, GS-2150-
09 under Agency Request No. 17-2023486-LJD – which closed on November 11, 2017, and closed
again on June 11, 2019, and was not selected. On issue 3, Complainant adds that while a duty of
his job is to solicit competitive bids to secure transportation from contractors, he was only provided
with one contractor to work with, while his coworkers were provided as many as a dozen.
ANALYSIS AND FINDINGS
Complaint 2, Issue 1
EEOC Regulation 29 C.F.R. § 1614.107(a)(1) requires the dismissal of claims that state the same
claim that is pending before or has been decided by the agency or the Commission. We agree with
the Agency that Complaint 2, issue 1 - Complainant was forced to perform the duties of a GS-9
while being paid as a GS-7, is the same Complaint 1, issue A. The EEO counselor recounted in his
report that he asked Complainant how the later version of this claim differed from the earlier one,
and he verbally responded, “different facts, asked to do work for different positions, different
duties….” Because Complainant gives no specifics, he has not shown a change in circumstances
to distinguish the later time period from the earlier one. Complainant also contends that the later
version of the claim differs because it covers a more recent time period. But without specifics on
how circumstances changed, the later version of the claim is identical to the earlier version, i.e.,
since April 2013, he has been forced to perform GS-09 duties while he is paid as a GS-07. The
Agency’s dismissal of Complaint 2 issue 1 is affirmed.
Complaint 2, Issue 2
Complainant provided a supplemental response clarifying that, in Complaint 2, Issue 2, he was
referencing two specific positions for which he applied but was not selected.

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We are unable to decipher, however, whether this response was provided for the first time on
appeal, or before the Agency’s FAD was issued. Because we do not know if the Agency has had
the opportunity to review for acceptance or dismissal the two referenced non-selection claims prior
to the FAD being issued, we will remand this matter to the Agency, as ordered below.
Complaint 2, Issue 3
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the
holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), 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. Harris, at 21-22. Thus, not all claims of harassment are actionable. Where a complaint
does not challenge an agency action or inaction regarding a specific term, condition or privilege
of employment, a claim of harassment is actionable only 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.
The Commission has a policy of considering reprisal claims with a broad view of coverage. See
Carroll v. Dep’t of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Under Commission
policy, claimed retaliatory actions which can be challenged are not restricted to those which affect
a term or condition of employment. Rather, a complainant is protected from any discrimination
that is reasonably likely to deter protected activity. See EEOC Enforcement Guidance on
Retaliation and Related Issues, at 5-19 (REV Aug. 25, 2015) (available at eeoc.gov).
Applying the above, we find that the incidents in issue 3, even if we included his only being
provided with one contractor to work with, taken together fail to state a claim because they neither
rise to the level of actionable harassment, nor would reasonably likely deter EEO activity. Aside
from having to cancel the double booking, Complainant does not allege he was otherwise impacted
by S1 erroneously directing him to do the later booking. Regarding TDY for Complainant’s
DODDS Softball European Tournament, S1 relayed to the EEO counselor that there was no
requirement that he sign off on Complainant’s TDY travel order for it to be granted, nor does
Complainant contend he was unable to go to the tournament on TDY. The smartboard and
overhead projector incident regards a resource for customers in the Stuttgart School Bus Office,
and the denial thereof is not abusive or harassing in nature, even if Complainant perceives it as so.
Complainant does not contend that being provided only one contractor to work with when
soliciting competitive bids resulted in any action being taken against him, nor does he state he was
prevented from soliciting other contractors he knew of or was able to locate.
Complainant raised incidents of harassment in Complaint 1, as amended (i.e., Complaint 1, issue
7, as numbered by the Agency), and after investigating them dismissed them on July 31, 2019, for
failing to state a claim because they did not rise to the level of actionable harassment. This
dismissal was before Complainant requested his hearing on August 13, 2019, on Complaint 1.

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We find that Complaint 2, issue 3, even taken together with the incidents in Complaint 1 issue 7,
fails to state a claim of actionable harassment, nor would reasonably likely deter EEO activity.
CONCLUSION
The Agency’s dismissal of Complaint 2, issues 1 and 3, is AFFIRMED. The Agency’s dismissal
of Complaint 2, issue 2 is REVERSED.
ORDER
Within thirty (30) days of the date this appellate decision is issued, the Agency shall make a
determination in writing to accept for investigation or dismiss in whole or part, in accordance with
29 C.F.R. Part 1614, Complainant’s clarified claim (Complaint 2, Issue 2) that he twice applied,
but was not selected, for the position of Transportation Operation Specialist, GS-2150-09 (under
Agency Request No. 17-2023486-LJD which closed on November 11, 2017, and closed again on
June 11, 2019).
If the Agency accepts any part of Complaint 2, Issue 2, and the Report of Investigation for rest of
Complaint 2 has already been issued to Complainant, the Agency shall consider this issue as a
separate formal complaint and process it in accordance with the procedures detailed in 29 C.F.R.
Part 1614.
The Agency may evidence compliance with this Order by submitting, via the Federal Sector EEO
Portal (FedSEP), a copy of its acceptance and/or dismissal letter.
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). 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.

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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. 	The
Commission will consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).

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COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610)
This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to
continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the
Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. 	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 your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. 	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
August 27, 2020
Date