0120140384
04-23-2014
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120140384
Agency No. ARRAD13JUN02340
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 20, 2013, 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. The Commission accepts the appeal pursuant to 29 C.F.R. 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Heavy Mobile Equipment Metal Worker, WE-3801-08, at the Agency's Red River Army Depot facility in Texarkana, Texas.
On June 17, 2013, Complainant contacted an EEO Counselor. On August 6, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to a hostile work environment on the bases of race (African-American), religion (Christian), color (Black), age (60), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. Management declined to renew Complainant's limited term appointment and terminated his employment.
2. On April 12, 2013, the Division Chief suspended Complainant for one work day for failure to follow leave procedures and absence without leave on March 6, 2013.
3. On an ongoing basis from 2012 to 2013, coworkers constantly spit tobacco in Complainant's work area, despite Complainant's objections to management.
4. In July or August 2012, Complainant's supervisor wrongly wrote him up and accused him of being a spy.
5. On an unspecified date during 2012, a coworker threw a large wrench at Complainant.
6. In July to August 2012, management ended his detail and directed Complainant to move out of his assigned building to another building.
7. In September to October 2012, second shift employees removed Complainant's toolbox and disconfigured his work area.
8. On an unspecified date in 2012, management gave Complainant a personal copy of a technical manual and then reprimanded him for writing in it.
9. On an unspecified date in January or February of 2012, a coworker asked Complainant if he was really "a stupid mother fucker" as reported.
10. In January 2012, Complainant's supervisor failed to correct Complainant's leader, who cursed Complainant and referred to him as a "fucking preacher" at a group meeting.
11. In July of 2010, management condoned an EEO Specialist calling Complainant a liar and exhibited aggressive behavior.
12. On April 14, 2010, Security Offices detained Complainant and gave his personal keys to a Union Official, thereby compromising the security of Complainant's residence.
13. On April 14, 2010, the Security Officers falsely accused Complainant of making a terrorist threat - the same day of Complainant's EEO mediation session (on a prior complaint).
14. On January 23, 2010, a coworker provided Complainant with a written statement that Complainant's immediate supervisor referred to him as a "No Good Nigger, a lay piece of shit and a fucking preacher."
15. On December 8, 2009, Complainanant's immediate supervisor issued him a letter requested a medical physical.
16. In July or August of 2009, two White employees comment that they were going "coon hunting;" which is a term that has racial connotation.
17. In July 2009, Complainant's supervisor called him a liar in the presence of a group of employees.
18. In July 2009, management coerced Complainant into withdrawing his union grievance.
19. In July 2009, the Branch Chief cursed Complainant and commented to him that he would have been alright if he had just taken the corrective interview and AWOL concerning not reporting back to work following in service training.
20. In 2008, Complainant was subjected to a comment by a white coworker that "they have gone and put a Nigger in the White House."
Complainant is an African-American man of dark complexion, age 60 and is a Christian preacher. Management was aware of his race, color, religion and age. He filed a prior complaint on May 6, 2010, that was the subject of a May 20, 2010 Agency decision dismissing the complaint.
Management does not deny that it was aware of Complainant's EEO claims. Complainant raised his concerns of an ongoing hostile work environment (and brought this matter to the attention of) with the U.S.Office of Special Counsel, the Inspector General and the Agency's Human Resources Officer and the Command Chief.
In his EEO complaint, Complainant named five responsible management officials, including the Commander, the Deputy Commander, and the Branch Chief. The titles were referenced as: 1) the Directorate for Maintenance Production, Armor Removal Section, 2) Directorate for Maintenance Production, Shipping Section, 3) Directorate for Maintenance Production, "HMMWV Tactical Division", 4) Directorate for Maintenance Production, Secondary Division, and 5) the former Red River Army Depot Supervisor.
The record specifically shows that Complainant tried to meet with the head of the facility. The Deputy Commander stated that he met with Complainant, instead, on October 17, 2012. The Deputy then referred Complainant to the Management Employee Relations Branch and to the Legal Office for further assistance.
Complainant states that he eventually made contact all the way to the Civilian Commander of the base. The Office of the Inspector General sent the matter to the base Legal Department and to the U.S. Office of Special Counsel. The Office of Special Counsel did not accept the claim because it presumed that the matter had been processed as an EEOC claim.
The Agency issued a final decision dismissing the entire complaint for untimely EEO contact, stating all the events alleged by Complainant occurred more than 45 days prior to his initial EEO counselor contact. The Agency also dismissed allegations 10, 15 and 18 because the Agency reasoned that the allegations had been the subject of a prior complaint (DA Docket Number ARRRAD10JAN00495), later dismissed.1 The Agency noted that Complainant contended that he was subjected to a continuous hostile work environment. The Agency found, however, that none of Complainant's allegations of discrimination were brought to the attention of the EEO Official or Counselor within the 45-day limitation period.
The instant appeal followed.
ANALYSIS AND FINDINGS
States Same Claim as a Prior Complaint
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission.
As noted above, the Agency dismissed allegations 10, 15 and 18 because the Agency reasoned that the allegations had been the subject of a prior complaint (DA Docket Number ARRRAD10JAN00495). The record supports the Agency's assertion in this regard, and Complainant does not dispute the Agency's claim on appeal. Accordingly, we AFFIRM the Agency's dismissal of allegations 10, 15 and 18 from the complaint as already addressed in his prior complaint (DA Docket Number ARRRAD10JAN00495).
Timeliness of Claims
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that the complaint of discrimination should 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 45 days of the effective date of the action.
In allegation 1, Complainant alleges that after he reached out to high level management officials, including the Deputy Commander, with his claims of discriminatory harassment, the Agency decided not to renew his appointment and terminated his employment. While the Agency asserts this occurred on April 17, 2013,2 the record does not show when or how the Agency gave notification to Complainant of his termination. The record does not contain a termination notice or Form 50 for the action. According to the EEO Counselor's report, the deciding management official did not issue Complainant a notice advising him of the non-renewal of his appointment. Complainant has stated he was only made aware of a one-day suspension (allegation 2). Where, as here, 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. Department of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)). The Agency has failed to meet its burden of providing evidence of the effective date of Complainant's termination and/or when he learned of it. Therefore, the Agency cannot establish that Complainant's June 17, 2013 EEO contact was untimely with regard to this allegation. Accordingly, we REVERSE the Agency's dismissal of this allegation as an independent claim of race discrimination and unlawful retaliation.
Complainant has also alleged that his termination was part of a claim of ongoing harassment/hostile work environment. The Supreme Court has held that a complainant 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 National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002).
Since we have concluded that Complainant's initial EEO counselor contact in June 2013 will be deemed timely with regard to the decision to terminate Complainant's employment, this act will render Complainant's related hostile work environment claim also timely raised.
In addition, EEOC regulations provide that the Agency or the Commission shall extend the time limits when the individual or the record shows that there existed circumstances beyond the complainant's control that prevented timely contact with an EEO counselor.
The record does not show that the Agency advised Complainant of the appropriate procedures and timeframes for initiating an EEO complaint. He was not told to contact an EEO Counselor. On the contrary, Complainant alleges that management officials laughed at him after he followed through on their advice to contact the Office of Special Counsel and missed the 45-day filing period. We recognize that because Complainant filed an earlier EEO complaint, he should have been aware of the 45-day filing requirement. In this case, however, Complainant believed that he was taking appropriate action by making the contacts that he made and raising the EEO claims that he raised up the chain of command. There is no evidence that he was cautioned that he would lose his right to proceed with an EEOC claim if he did not first contact an EEO counselor.
Moreover, the record includes a "Local Complaint Form" (dated March 19, 2013) in which Complainant clearly alleged that he being harassed and subjected to an erroneous charge that he wanted removed from his work record. On appeal, Complainant has presented persuasive arguments regarding his many attempts to timely bring his EEO concerns to the attention of the appropriate officials. He also states that "since EEO was as hostile as supervision," he was advised to appeal to his chain of command for assistance. There is no evidence that management ever advised Complainant that he should contact an EEO Counselor within 45 days of the effective date of any challenged action. Rather, as Complainant described it, management sent him on a "wild goose chase," that caused him to miss the traditional EEO deadlines. Given these circumstances, we exercise our discretion, pursuant to 29 C.F.R. � 1614.604(c) in finding that equitable tolling is appropriate with regard to Complainant's hostile work environment claim.
Accordingly, based on the unique facts of this case, and with the exception of allegations 10, 15 and 18 discussed above as having been already addressed in a previous complaint, we find that Complainant has alleged a viable claim of ongoing discriminatory and retaliatory harassment creating a hostile work environment. Accordingly, we REVERSE the Agency's dismissal of Complainant's ongoing harassment/hostile work environment claim.
CONCLUSION
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint with regard to his termination claim and his ongoing hostile work environment claim (with the exception of allegations 10, 15 and 18) and REMAND these claims for further processing pursuant to the following Order.
ORDER
The Agency is ordered to process the remanded claims (termination and hostile work environment) in accordance with 29 C.F.R. � 1614.108 et seq. 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 tends 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 (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 (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
April 23, 2014
__________________
Date
1 Our records do not show an appeal of that dismissal.
2 The report of the EEO Counselor references the date of the alleged discrimination action as April 17, 2013. However, the EEO Counselor report does not state what actions are alleged to have happened on that date.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120140384
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120140384