0120171482
09-13-2017
Cornell S,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Health Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cornell S,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Defense Health Agency),
Agency.
Appeal No. 0120171482
Agency No. DHANCR 16-0050
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated February 7, 2017, dismissing his complaint alleging 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the relevant time, Complainant worked as a Supply Technician at an Agency facility, providing support at the Agency's Supply Department, Walter Reed Medical Center in Bethesda, Maryland.
On September 9, 2016, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On November 10, 2016, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the bases of sex (male), color (Black), disability, and age when:
a) Beginning in 2010, he was subjected to a hostile work environment when:
1. there was a fight between two employees in the Material Handler supervisor's office, and while the two employees were hitting each other, the supervisor just sat at his desk watching without saying anything;
2. there has always been favoritism to other employees rather than African Americans;
3. he felt disrespected, cursed at, hostility, profanity, argued with at least twice a month by the supervisor;
4. the supervisor jokingly called him "Dum Ass [Complainant]" to his girlfriend;
5. he was told by the supervisor "don't complain and if you have any problems, you can go," referring to two named employees who often work together, "leave them alone. They are my Filipino connection";
6. he asked the supervisor why he was always made at him and another Black contractor [Contractor 1], and he responded, "I need to take it out on somebody;"
7. a named employee told the supervisor to leave Complainant and Contractor 1 alone because the supervisor was constantly picking on both of them and would it do on purpose because both of them were black contractors; and
8. if he or Contractor 1 sent a box to the wrong department, the supervisor would curse at both of them and tell them that he can replace the both of them while military personnel or two named employees would lose boxes, the supervisor would not say anything.
b) Since February 2016, when he came on board to Walter Reed and on many occasions, a named employee [Employee 1] came around him in a disrespectful manner, cursing loudly, calling another employee [Employee 2] a "punk ass" accompanied by the "N" word, talking badly about Employee 2's wife who works on the base, calling another named employee bad names, informing the supervisor that there were problems like fighting and cursing in the warehouse, and cursing and threatening the FEDEX driver.
c) In April 2016, he contacted a Human Resources representative that he wanted his position upgraded from military status to a GS position, but the supervisor told him it was a waste of time.
d) In July 2016, he informed the supervisor of his need for an arm and Knee brace, and of his need not to sit or drive for a long period of time due to his travel to and from work. The supervisor responded, "who told you to move up there?"
e) On July 24, 2016, a Captain asked him to come into his office along with the supervisor and Chief and they all started harassing him with many questions about his brace although he told them that the Veterans Administration would supply him with the brace. During the interrogation, he felt under fire with the way the questions were thrown at him and after all the issues with the supervisor, he still did not receive his requested accommodation or transfer;
f) On August 16, 2016, he was told by his personal physician that the supervisor called and inquired about his medical condition.
g) In September 2016, while he was at his desk, Employee 1 went after and threatened Employee B because he accused him of something. The next day Employee 1 was variably cursing and threatening Employee B again which was recorded on his phone. The next day Complainant mentioned it to the supervisor and he did not care less.
h) In September 2016, the supervisor was told Employee 1 was having an issue with another contractor, cursing and threatening him about his job and again, nothing was done by the supervisor.
i) On February 3, 2017, the FEDEX driver approached him and asked him who was in charge when the supervisor was not there. However, he looked to his left and Employee 1 was coming over with a very intense look and started speaking to the FEDEX driver about receiving material, but the driver kept asking him about the next person above the supervisor. Complainant handed a named employee's phone number to the Captain's office, asking the named employee to give it to the FEDEX driver. The last time he was helping, he was told that he was a snake and other name-calling and he did not want to be involved anymore.
In its February 7, 2017 final decision, the Agency dismissed the formal complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1), without further elaboration. The sole portion of its analysis identified by the Agency is that EEOC regulations are not to be used as a "general civility code."
The instant appeal was filed by Complainant.
ANALYSIS AND FINDINGS
As an initial matter, the Agency argues that Complainant appeal was untimely filed. We disagree. There is no evidence indicating that Complainant actually received the Agency's final decision, other than the Agency's assumption that Complainant should have received its final decision within five days of its decision. 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)). In addition, in Ericson v. Department of the Army, EEOC Request No. 05920623 (January 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. Department of Defense, EEOC Request No. 05910837 (January 31, 1991). Here, the Agency failed to meet that burden. Accordingly, we deem the instant appeal as timely filed.
EEOC Regulation 29 C.F.R. �1614.107(a)(1) provides for the dismissal of a complaint which fails to state a claim within the meaning of 29 C.F.R. �1614.103. Here, a fair reading of the complaint establishes that Complainant is alleging a discriminatory hostile work environment. 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. Thus, not all claims of harassment are actionable.
In his formal complaint, Complainant provides a comprehensive annotation of various alleged instances of discriminatory harassment, including but not limited to, being subjected to a pattern of abuse by supervisors that included being treated with hostility, subjected to profanity, being ridiculed in front of others, observing management indifference to racial epithets including the "N" word being used in the workplace, being the subject of improper inquiries relating to his medical condition, and witnessing Agency indifference to confrontations between coworkers. By alleging this pattern of ongoing harassment over a significant period of time, we determine that Complainant has alleged sufficient facts to state a viable harassment/hostile work environment claim.
We note that in its response to the appeal, the Agency expands its dismissal analysis. For the first time, the Agency suggests that Complainant is not covered by the 29 C.F.R. Part 1614 EEO complaint process. As noted above, the Agency's final decision briefly disposed of his claims in cursory fashion, indicating that they failed to state a claim. The final decision is devoid of any discussion of dismissal because Complainant is not an Agency employee. We note that in its appellate brief, the Agency indicates that, "More importantly, there is not sufficient evidence that [Complainant was an employee of the Agency or an employee-employer relationship was created . . . (emphasis added)." We find it significant that the Agency construed this matter as sufficiently "important" to be discussed in its appellant brief, but not sufficiently important to have been expressly discussed in its final decision.
In a similar fashion, the Agency for the first time indicates that some claims were not timely raised with an EEO Counselor. However, dismissal on such grounds was also not addressed in its final decision.
Commission regulations require that the Agency set forth the rationale for dismissing any claims in an EEO complaint, in a final decision. See 29 C.F.R. 1614.110(b). It is not appropriate for the Agency to address new dismissal grounds for the first time on appeal and, in most circumstances such as in the instant case, we will decline to address any dismissal attempt made outside of the Agency's final decision.
Based on the foregoing, the Agency's final decision dismissing the formal complaint for failure to state a claim is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claim (ongoing harassment/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 claim 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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).
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 (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
September 13, 2017
__________________
Date
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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0120171482