0220130004-0009
05-15-2014
Agency.
Grievants,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal Nos. 0220130004, 0220130005, 0220130006, 0220130007,
0220130008, & 0220130009
DECISION
On May 16 and 17, 2013, Grievants filed appeals from Step 2 Agency decisions (Decisions) dated April 19, 2013, concerning the Grievants' claims of 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeals timely and accepts them pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Grievants worked in various positions at the Agency's Garrison Mobile Equipment Branch in the Logistics Support Division facility in Albany, Georgia.
Between January 17 and 22, 2013, Grievants filed grievances under the Agency's collective bargaining agreement alleging they were subjected to ongoing discriminatory harassment by a Director of Garrison Mobile Equipment ("Director") (male, race and disability status unknown) on the various bases1 of race, sex, disability and reprisal for prior EEO activity.
The matters went to first and then second-step grievances and the Agency found that the discrimination claims were both untimely raised and unsubstantiated. In addition, the Agency found that management acted promptly in removing the Director from the workplace once the matter was brought to management's attention. Thereafter, the Grievants filed the instant appeals. We are consolidating the six appeals for a single decision pursuant to 29 C.F.R. � 1614.606.
ANALYSIS AND FINDINGS
We note initially that Grievants on appeal have submitted motions to amend their appeals to include new claims regarding denial of official time. We further note that, pursuant to 29 C.F.R. � 1614.106(d), an EEO complaint may be amended at any time prior to the conclusion of the investigation. The regulations, however, do not provide for the amendment of grievances. Accordingly, the motions to amend are denied.
The Agency found that the claims should be dismissed on the grounds that the Grievants filed their grievances more than forty-five days after the last alleged act of harassment. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Agency argues that the Director had been removed from the facility on or about November 30, 2012, and that the Grievants have not alleged any acts of harassment between that date and the date they filed their grievances on January 17, 2013, more than forty five days later. The Agency contends that because Grievants exceeded the forty-five day period, their grievances are untimely. Grievants contend that they tried bringing the matters to management's attention on prior occasions but were ignored.
A review of the applicable regulations reveals that � 1614.107(a)(2) states that "prior to a request for a hearing in a case, the agency shall dismiss an entire complaint that fails to comply with applicable time limits contained in �� 1614.105, 106 and 204(c). Sections 105 and 106 address time limits for Federal employees seeking to pursue the EEO administrative process by filing individual EEO complaints, while � 204 addresses class complaints. None of these sections, however, addresses grievances. Furthermore, the forty-five day limit does not apply to the filing of the complaint itself, but only to the preliminary stage of contacting an EEO Counselor. We note, however, that the Agency has pointed to nothing in the regulations that applies the forty-five day limit for EEO counselor contact to the filing of grievances. Indeed counselor contact is not even required under the grievance process, so there is no basis to find that any time limit for such contact applies where the contact itself is not required. Finally, we note that the grievances themselves were not dismissed for untimeliness under the rules governing grievances, unlike in Thomas v Department of the Navy, Appeal No. 0120131694 (April 23, 2013) (Commission lacked jurisdiction to address dismissal of grievance on the grounds of untimeliness). In the instant case, because the Agency did not dismiss the grievances as untimely, the Commission has jurisdiction to address the merits of the claims and the forty-five day time-limit for Counselor contact does not apply.
Upon review, we find the record to be insufficiently developed for us to determine if Grievants were subjected to harassment based on race, sex, disability and/or reprisal. Specifically, we find that the record contains inadequate documentary and testimonial evidence regarding exactly what incidents of alleged harassment occurred, and on what dates they occurred. While one of the questionnaires provided to Grievants requested specific information about any incidents of harassment, and asked how long the harassment has been going on, none of the questions specifically asked for the dates of each incident of harassment. Without knowing the dates the alleged actions occurred we are unable to determine if the alleged actions occurred sporadically or frequently and hence cannot determine the pervasiveness of the harassment, if any. Furthermore the statements that have been provided were not provided under oath, and the Grievants do not appear to have been given the opportunity to rebut the Director's denials of any harassment. Finally, we note that not all the Grievants were provided the same opportunity to tell their story. According to the record on appeal, some of the Grievants were provided numerous opportunities to explain what happened, while others only completed the "EEO Grievance/Info Questions" form. Accordingly, we remand this case back to the Agency to conduct a supplemental investigation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's six Decisions and REMAND Grievants' discrimination claims in accordance with the Order below. See Polite v. Office of Personnel Management, EEOC Appeal No. 0220070001 (January 14, 2009); Mullen v. Department of the Army, EEOC Appeal No. 02A40008 (September 15, 2005); Foster v. Department of the Army, EEOC Appeal No. 02970017 (September 3, 1999); Ricks v. Department of Health and Human Services, EEOC Appeal No. 02960014 (June 16, 1997).
ORDER
The Agency is ordered to consolidate the grievances and conduct a supplemental investigation into Grievants' allegations that they were subjected to harassment on the various bases of sex, race, disability, and reprisal. The investigation shall include the following information:
1. Affidavits or sworn testimony from all relevant witnesses, where available to provide such evidence. The witnesses should be asked to provide details about each incident of alleged harassment including the specific dates of such incidents. The witnesses should be provided the opportunity to rebut other witnesses written or oral statements; and,
2. Any other relevant information and documentation regarding Grievants' allegations.
The Agency shall complete its investigation within sixty (60) days of the date this decision becomes final. The Agency shall further compile an evidentiary record regarding Grievants' claims, including copies of the investigation, copies of all stages of the grievances submitted, all the evidence accumulated during the various stages of such grievances, and any other relevant information or documentation regarding Greivants' allegations of harassment. The Agency shall provide a copy of all requested documentation to Grievants and their representative(s), if any.
Within thirty (30) calendar days of the completion of the investigation, the Agency shall issue a third-step grievance decision that expressly addresses Grievants' discriminatory harassment claims, and provides Grievants with the right to appeal the Agency's consolidated third-step grievance decision to the Commission pursuant to 29 C.F.R. � 1614.401(d).
The Agency shall provide documentary confirmation of the completion of these actions to the Compliance Officer, as reference below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Grievants. If the Agency does not comply with the Commission's order, the Grievants may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Grievants also have 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 Grievants have 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 Grievants file a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Grievant 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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 15, 2014
__________________
Date
1 The Grievants did not all list the same bases of alleged discrimination. LF claimed discrimination based on race, sex and disability, KH claimed discrimination based on sex, PK claimed discrimination based on disability, WH claimed discrimination based on race and reprisal, BP claimed discrimination based on sex, and MW claimed discrimination based on sex and reprisal.
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0220130004
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0220130004-0220130009