0120111125
01-31-2012
Angelo Almeida, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Angelo Almeida,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120111125
Agency No. ARPICAT10FEB01350
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
undated decision (FAD) 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. 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 a Quality Assurance Specialist at the Agency’s Picatinny Arsenal
facility in New Jersey. On August 19, 2010, Complainant filed a formal
complaint alleging that the Agency subjected him to discrimination on
the bases of race (Portuguese), age (from 56 to 58 years old at the
times of the various incidents), and reprisal1 under the ADEA when:
1. For the rating period from July 1, 2008 to June 30, 2009, Complainant
was given a performance rating of 2 and exceeds standards (24 -74%);
2. In late 2008 or early 2009, Complainant was replaced as the Chairperson
of the 40 MM Continuous Improvement Team;
3. In late July 2009 Complainant received an anonymous and threatening
message at home saying “one way or another we will get you to retire
and you can do it the easy way or the hard way”;
4. In the middle of 2009, the Maneuver Ammunition Systems 40 MM Team
Leader (TL) told the other members of the team that Complainant’s
directions should be disregarded;
5. On February 16, 2010, TL issued an email to team members notifying
them that Complainant had been barred from attending any meetings located
in Building 65 in support of the 40 MM program;
6. In April 2010, after Complainant notified management about the July
2009 anonymous note, he was told his “skill set” was no longer
needed and he was moved from his position in the Program Manager’s
Office in Maneuver Ammunition Systems to a position as a Team Leader,
QEP-B Small/Medium Caliber Munitions, PQM Group, with a resultant change
in duties; and
7. In June 2010, Complainant was constructively discharged.
The Agency did not address claim 7, but dismissed the remaining claims for
mootness, failure to state a claim, and untimely EEO Counselor contact.
Specifically, the Agency found that claims 1 through 4 should be dismissed
for untimely EEO Counselor contact because the events occurred in 2009
and Complainant did not contact an EEO Counselor until February 24,
2010. The Agency next found that the matters raised in claims 4, 5,
and 6 were moot. With regard to claim 5, the Agency found that TL had
rescinded the email the following week, and further, the Agency noted,
Complainant no longer worked for TL since Complainant now worked for a
different Agency. With regard to claims 4 and 6, the Agency essentially
argued that subsequent praise from management, in the form of a letter of
recommendation from one management official and a letter of appreciation
from TL, in addition to the fact that Complainant no longer worked for
the Agency, all rendered the actions moot. Finally, the Agency found
that Claim 5 failed to state a claim.
CONTENTIONS ON APPEAL
Complainant argues on appeal that the matter raised in claim 5 is not moot
because even though the offending email was rescinded in a subsequent
email, the original offending email was still attached to it, “thus
in effect sending the email twice . . . so even if someone missed it
the first time, they were able to view it again.” Complainant’s
Appeal Brief. Complainant further argues that he was not made aware of
the applicable timelines for contacting an EEO Counselor. Complainant
next argues that the letters of appreciation and recommendation are
insufficient to render the underlying claims moot, and that, while he
no longer works for the Agency, he still interacts with the same Agency
facility and team members in his new position at a different Agency.
Finally, Complainant argues that he was constructively discharged.
The Agency on appeal repeats the arguments made in its FAD, and requests
that we affirm the FAD.
ANALYSIS AND FINDINGS
We note initially that, with regard to the FAD’s conclusion that
claims 1 through 4 should be dismissed for untimely EEO Counselor
contact, the Supreme Court has held that a complaint alleging a hostile
work environment will not be time barred if all acts constituting the
claim are part of the same unlawful practice and at least one act falls
within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 117 (2002). The Court further held, however, that “discrete
discriminatory acts are not actionable if time barred, even when they
are related to acts alleged in timely filed charges.” Id at 113.
Claims involving events such as termination, failure to promote, denial
of transfer, or refusal to hire are clearly defined and are considered
to be discrete acts. Id. at 114. With a discrete act, each incident of
discrimination constitutes a separate actionable “unlawful employment
practice.” Id. Finally, the Court held that such untimely discrete
acts may be used as background evidence in support of a timely claim. Id.
Given the above, we find that the incidents described in claims 1 and
2 constitute discrete acts, while those in claims 3 and 4 constitute
non-discrete acts. We next need to determine if the Agency correctly
dismissed claims 1 and 2. We note in this regard that Complainant
argues that he was unaware of the applicable time periods. We further
note that the Agency has not indicated that constructive knowledge can
be imputed to Complainant by showing, for example, that Complainant
received EEO training or that EEO posters containing the time limits
are posted throughout the facility. The Commission has held that where
there is an issue of timeliness, "[a]n agency always bears the burden of
obtaining sufficient information to support a reasoned determination as
to timeliness." Guy, v. Dep’t of Energy, EEOC Request No. 05930703
(Jan. 4, 1994) (quoting Williams v. Dep’t of Def., EEOC Request
No. 05920506 (Aug. 25, 1992)). In addition, in Ericson v. Dep’t of the
Army, EEOC Request No. 05920623 (Jan. 14, 1993), the Commission stated
that “the agency has the burden of providing evidence and/or proof to
support its final decisions.” See also Gens v. Dep’t of Def., EEOC
Request No. 05910837 (Jan. 31, 1992). Following a review of the record,
we find that the Agency has not satisfied its burden of establishing that
Complainant knew, or should have known, of the applicable time limits.
We therefore find his February 14, 2010 Counselor contact to have
been timely.
With regards to the Agency’s argument about mootness, Complainant is
essentially arguing that he experienced a series of ongoing harassing
actions that eventually led him to leave the Agency. As such, we do not
find that subsequent letters of recommendation or appreciation from Agency
officials are sufficient to render his claims moot. We further find it
disingenuous for the Agency to argue that actions that allegedly caused
Complainant to leave the Agency can be deemed moot because Complainant
no longer works for the Agency.
With regards to the Agency’s argument that claim 5 fails to state
a claim, we find that, when viewed together with the other claims as
one incident in larger, ongoing claims of harassment and constructive
discharge, Complainant states valid claims. Finally, we note that the
Agency has not addressed the constructive discharge claim.
CONCLUSION
For the above reasons, the Commission REVERSES the Agency’s FAD and
REMANDS the claims to the Agency for additional processing in accordance
with the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with
29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. 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 becomes final, 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.
A copy of the Agency’s letter of acknowledgment to Complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced 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 Complainant. 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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
January 31, 2012
__________________
Date
1 While Complainant did not tick off the box marked reprisal in his
Formal Complaint form, we note that allegation 6 raises an allegation
of reprisal.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120111125
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111125