Bernardo C.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Contract Management Agency), Agency.

Equal Employment Opportunity Commission

Oct 18, 2018

0120182258 (E.E.O.C. Oct. 18, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Bernardo C.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Contract Management Agency),
Agency.

Appeal No. 0120182258

Hearing No: 430-2015-00388X

Agency No. PH-15-0006

DISMISSAL OF APPEAL

By Notice of Appeal postmarked June 20, 2018, Complainant filed an appeal with the Equal
Employment Opportunity Commission (EEOC or Commission) from the May 7, 2018 final
agency decision concerning his EEO 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. § 791 et seq. For the following reasons, the Commission DISMISSES Complainant’s
appeal.

At the time of events giving rise to this complaint, Complainant worked as the Affirmative
Employment Manager, GS-0260-14 at the Defense Contract Management Agency (DCMA),
EEO Office, in Fort Lee, Virginia. On January 16, 2015, Complainant filed a formal complaint
alleging that the Agency subjected him to discrimination on the bases of race (African-
American), national origin (African-American), sex (male), color (brown), disability, and
reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and
Section 501 of the Rehabilitation Act of 1973 when:

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. From May 2013 to October 21, 2014, Complainant’s second level supervisor (S2),
harassed and treated Complainant differently than others. Complainant provided the
following in support of his claim:
a. From May 2013 to October 21, 2014, S2 called Complainant derogatory names
and made derogatory comments regarding his manner of dress;
b. From May 2013 to September 2014, S2 regularly made unwanted sexual
comments to Complainant;
c. From May 2013 to September 2014, S2 bullied and intimidated Complainant in
the presence of his coworkers;
d. From May 2013 to September 2014, S2 made threats about terminating
Complainant’s federal service;
e. From May 2013 to September 2014, S2 stated that it was wrong for
Complainant to file a complaint against the former Director of Personnel and that
Complainant would never make GS-15 at DCMA;
f. In July 2014, S2 stated that because of Complainant’s disability he would never
be able to complete his doctoral program; and
g. From May 2014 to June 2014, S2 monitored Complainant’s arrival time by
placing post-it notes on his office door when he was late.
2. From May 2013 to September 2014, S2 regularly assigned Complainant unnecessary
tasks.
3. From May 2013 to August 2014, S2 denied Complainant’s requests to attend training
and the opportunity to travel and conduct EEO training.
4. In May 2014, S2 revoked Complainant’s informal reasonable accommodation and
changed his work schedule which caused Complainant to have difficulty sleeping and
adjusting to his medication.
Upon completion of the investigation of the complaint, Complainant requested a hearing before
an EEOC Administrative Judge (AJ). On September 1, 2016, the Agency filed a Motion for
Summary Judgment and Complainant filed his response on September 21, 2016. On May 1,
2018, the AJ issued a decision without holding a hearing. The AJ incorporated the Agency’s
Motion for Summary Judgment and found that Complainant failed to establish that he was not
discriminated against as he alleged. The Agency’s final order implemented the AJ’s decision.
Complainant appealed.

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The record establishes that the Agency’s final order was sent to Complainant’s address of record
by USPS Certified Mail. A copy of the return receipt information from USPS shows that the
Agency’s final order was received by Complainant on May 19, 2018. A review of the final order
reveals that the Agency properly advised Complainant that he had 30 calendar days after receipt
of its final order to file his appeal with the Commission. In order to be timely, Complainant
would have had to file his appeal by June 18, 2018. Complainant has not offered adequate
justification for an extension of the applicable time limit for filing his appeal.

Accordingly, Complainant's June 20, 2018 appeal is untimely and is DISMISSED. See 29
C.F.R. § 1614.403(c).

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 (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

October 18, 2018
Date