0120151998
02-02-2016
Dallas D.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Dallas D.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120151998
Agency No. 15-67100-01109
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated April 22, 2015, dismissing a formal 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.
BACKGROUND
During the period at issue, Complainant, a Sandblaster, at the Agency's Marine Corps Logistics Command (MCLC) in Barstow, California was acting as the elected-full time president of his union.
On January 20, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On an unspecified date, Complainant filed the instant formal complaint dated March 5, 2015.2 Therein, Complainant alleged that the Agency subjected him to discrimination on the bases of race, national origin, color, disability, age, and in reprisal for prior EEO activity when:
a. on or about April 1, 2014, the Commander and the Inspector General conspired to leak an allegedly forged derogatory letter about him to two union stewards;
b. on or about September 14, 2014, he was suspended for 14 days for allegedly "violating employee rights and interfering with an Official Investigation;"
c. on or about October 3, 2014, he was suspended for 14 days for allegedly "(1) Countermanding or contradicting an Order of the Commanding Officer, Marine Depot Maintenance Command (MDMC), MCLC (2) Countermanding or contradicting an Order of [MDMC supervisor]; and (3) counseling [MDMC employee] that he did not need to obey [Colonel's] and/or [MDMC supervisor's] lawful orders;"
d. management did not satisfy his request for an unspecified "desk job" as part of an ongoing interactive process. This "desk job would have allowed him to perform overtime duties, instead of performing available overtime in his regular job as a Modified-Position-Sandblaster (his regular duties are a desk job as an union president). Complainant asserted further stated that in regard to the Sandblaster position, he can perform "all the essential functions of the job;" however, overtime work could "jeopardize [his] disabilities;"
e. the MCLB Human Resources Specialist and EEO Counselor unnecessarily delayed the interactive process in his case by asking for substantiating information despite his contention that the agency already had the information they needed to grant him his request for an unspecified "desk job;"
f. on an unspecified date, his co-worker, and the co-worker's wife, called the MCLB police and filed a complaint against Complainant' s wife for allegedly making harassing comments. The co-worker also allegedly questioned why his wife was outside her work area and threatened to get his wife in trouble; and
g. for approximately one week, starting on March 9, 2015 because of retaliation for filing an EEO complaint in July 2014, management officials failed to prevent union election candidates from putting up disrespectful and vulgar posters (which he allege were falsely made out to be his campaign) flyers at various places in the MDMC.
In its April 22, 2015 final decision, the Agency dismissed claims a - c on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on January 20, 2015, which it found to be beyond the 45-day limitation period.
The Agency also dismissed claims b, c, d, f and g pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim, finding that Complainant was not aggrieved. The Agency also found that claims b, c and g constitute a collateral attack on negotiated grievance process. The Agency stated that Complainant should have raised his allegations through the negotiated grievance process, not through the EEO process.
Further, the Agency dismissed claims d and e on the alternative grounds that these claims have not been raised with an EEO Counselor and that it is not like and related to matters for which Complainant underwent EEO counseling, pursuant to 29 C.F.R. � 1614.107(a)(2).
The instant appeal followed.
ANALYSIS AND FINDINGS
Not like or related to a matter that has been brought to EEO Counselor (claims d and e)
The Agency found that claim d and e should be dismissed because they were not raised before the EEO Counselor. We note, however, that pursuant to 29 C.F.R. � 1614.106(d), a complainant may amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related in the formal complaint. While � 1614.107(a)(2) states that the Agency shall dismiss a complaint that raises a matter that has not been brought to the attention of an EEO Counselor and is not like or related to a matter that has been brought to the attention of an EEO Counselor, we find that such a provision does not apply in this case. A fair reading of the instant record reflects that Complainant alleged that he was being subjected to ongoing harassment by various Agency officials. In addition, the formal complaint contains additional examples of alleged harassment by the same Agency officials which are like or related to the instances alleged in the informal complaint, and Complainant is entitled to make such amendments under 29 C.F.R. � 1614.106(d). Therefore, we find that the Agency improperly dismissed claims d and e on the grounds that these claims have not been raised with an EEO Counselor and that they are not like or related to the matters for which Complainant underwent EEO counseling.
Failure to state a claim (claims b, c, f and g)
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. In order to establish standing initially under 29 C.F.R. �1614.103, a complainant must be either an employee or an applicant for employment of the agency against which the allegations of discrimination are raised. In addition, the claims must concern an employment policy or practice which affects the individual in his or her capacity as an employee or applicant for employment. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �1614.103; �1614.106(a). The Commission's Federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
We find that in regard to claim f, the Agency properly dismissed it for failure to state a claim. However, we find that the Agency fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment by dismissing claims b, c, and g for failure to state a claim. A fair reading of the formal complaint reflects that Complainant claimed that since 2012, he was subjected to a series of related incidents of harassment by various Agency officials. Specifically, Complainant stated that when the Colonel and Inspector General forged a letter to the two union stewards in order "to slander and harass me daily. No proper investigation was ever conducted...these documents were somehow leaked to these employees by these three high ranking officials, this letter is why I received a 14 day disciplinary action. This is all part of the disability, discrimination and not wanting to reasonably accommodate me and for my disability and retaliating against me for my formal EEO complaint against [Colonel]."
Moreover, we note that in its instant final decision, the Agency determined that claims b, c and g constitute a collateral attack on the negotiated grievance process. However, the record does not contain a copy of Complainant's grievance. Clearly, it is the burden of the Agency to have proof in support of its decision. See Marshall v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991). Therefore, the Agency improperly dismissed claims b, c and g on the grounds that they constitute a collateral attack on the negotiated grievance process.
As a remedy, Complainant requested that the Agency "to follow the President Executive Order 13164 of July 26, 2000 and to provide a reasonable accommodation so I can work O.T. Like all other employee's without disability's without the worry of worsening injury and not have to take meds just to work O.T. and stop retaliation!"
Given the breadth of Complainant's claims as noted above, a fair reading of the record reflects that he is alleging a pattern of harassment, and has therefore stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993).
Claims a - c (untimely EEO Counselor contact)
The Agency also improperly dismissed claims a - c on the grounds of untimely EEO Counselor contact. The record reflects that Complainant initiated EEO Counselor contact on January 20, 2015. The Commission has held that "[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence." EEOC Compliance Manual, Section 2, Threshold Issues at 2 - 75 (revised July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)).
The record reflects that various incidents comprising Complainant's hostile work environment claim occurred within the 45-day time period preceding Complainant's January 20, 2015 EEO Counselor contact, as discussed above. Because a fair reading of the record reflects that the matters identified in claims a - c are part of that harassment claim, we find that the Agency improperly dismissed these claims on the grounds of untimely EEO Counselor contact.
Moreover, it is significant to note that the matters raised by Complainant address the issue of an ongoing reasonable accommodation denial. Because an employer has an ongoing obligation to provide a reasonable accommodation, failure to provide such an accommodation constitutes a violation each time the employee needs it. See "Threshold Issues," EEOC Compliance Manual, at 2-73 (Revised July 21, 2005). The Supreme Court has held that a Complainant alleging a hostile work environment will not be barred if all acts constituting the claim are part of the same unlawful practice and at least one falls within the filing period. See National Railroad Passenger Corp. v. Morgan, 122 S. Ct. 2061 (June 10, 2002). This principal applies to this case as it is clear that Complainant initiated contact with an EEO Counselor within the regulatory time frame, at a minimum, in regard to the above referenced reasonable accommodation issue. As this matter was timely raised with an EEO Counselor, the other incidents of alleged harassment identified by Complainant will be construed as timely raised with an EEO Counselor as well.
Complainant is essentially alleging that he was subjected to discrimination when the Agency denied his reasonable accommodation requests. Complainant, on appeal, states that he is subjected to ongoing harassment as his reasonable accommodation request was again denied. We find that because Complainant is alleging an ongoing violation of his reasonable accommodation requests, we find that his January 20, 2015 EEO Counselor contact was not untimely with regard to the claims alleging denial of reasonable accommodation. See e.g., Peacock v. USPS, EEOC Appeal No. 0120082372 (July 31, 2008).
In summary, based on a review of the record, we AFFIRM the Agency's final decision dismissing claim f. We REVERSE the Agency's final decision dismissing claims a - d and g -e, defined herein as a harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ordered to process the remanded claims a - d and g - e (harassment/hostile work environment and violation of the Rehabilitation Act) 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 (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 (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 (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 Complainants 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
February 2, 2016
__________________
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.
2 The record reflects that the Agency received the instant complaint on March 13, 2015.
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0120151998