0120161353
06-21-2016
Felton S.,1 Complainant, v. Sally Jewell, Secretary, Department of the Interior (National Park Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Felton S.,1
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior
(National Park Service),
Agency.
Appeal No. 0120161353
Agency No. NPS150049
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 24, 2016, 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 Tractor Operator at the Agency's National Park Service, Andrew Johnson National Historic Site facility in Greenville, Tennessee.
On December 1, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to on-going discriminatory harassment sufficient to create a hostile work environment on the bases of age (59) and reprisal that included the following incidents:
1. On or about June 11, 2013, Complainant raised safety concerns after being instructed to mow wet grass, but his protests were disregarded by the Safety Officer (SO).
2. On or about July 8, 2013 Complainant again raised safety concerns after being instructed to mow another wet area of the park and his concerns were again ignored by SO.
3. On or about July 9, 2013, after SO instructed him to mow another area of the park, Complainant lost control of a tractor on a slope and experienced what he deemed to be a "near death experience."
4. On or about August 8, 2013, SO made false allegations regarding Complainant's ability to complete his duties, stating that Complainant could not carry a case of water weighing 54 pounds and that Complainant's shoulder injury was going to impact Complainant's work duties such as mowing and weed-eating.
5. At an unspecified time after July 9, 2013, two senior GS-12s asked Complainant repeatedly if and when he was going to retire.
6. At an unspecified time after July 9, 2013, the Safety Officer at the Southeast Region Office told Complainant that if he pursued an EEO complaint, he would be considered a trouble maker and a coward and that he should apologize for ever bringing his concerns to management's attention.
7. On or around October 2013, SO informed Complainant that he was assigned to dig all funerals and to remain on call until the Government shutdown was over.
8. On or around the last week of October 2013, Complainant was directed to complete a task that had been deemed unsafe by the safety committee and SO again disregarded Complainant's safety concerns and pressured Complainant and a coworker to complete the task.
9. On or around early December 2013, Complainant completed a routine clean-up of the visitor center restrooms and SO was not satisfied with the cleanliness of the restrooms and purposefully pulled out a flashlight to point out a pubic hair.
10. On or around January 2014, Complainant did not receive an award, while a coworker received an award for "simply doing his job."
11. On or around February 2014, SO again asked Complainant to perform a task that Complainant felt to be a clear violation of the Occupational Safety and Health Administration (OSHA) rules because Complainant was not provided a safety harness.
12. On or around February 2014, the Superintendent (S) stated that she, "didn't want JHA [sic] on wet mowing" and that she believed "maintenance employees would take advantage of it and use it as an excuse not to work" which is contrary to the directions of the Director following the death of an Agency employee.
13. On or about March 30, 2014, as a result of the alleged harassment, Complainant was forced to retire (constructive discharge).
The Agency dismissed the claims for untimely EEO Counselor contact. The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination 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 forty-five (45) days of the effective date of the action.
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). Here, the record discloses that the latest alleged discriminatory event raised in allegation #13 occurred on March 30, 2014, but Complainant did not initiate contact with an EEO Counselor until August 22, 2014, which is beyond the forty-five (45) day limitation period.
EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Complainant, on appeal, contends that he was not notified of the time limits and was not aware of them.
The Agency's Dismissal decision disputed this claim, and found that:
A document in the Report of Counseling, titled Southeast Region Compliance Certification: EEO Bulletin Board Requirements certifies that a list of EEO documents are posted on all official bulletin boards throughout the [facility], Complainant's duty station prior to his retirement. This document is dated October 9, 2012 and signed by [S]. The list of documents that were posted on the bulletin boards include, but is not limited to, an Updated EEO Counselor Poster, U.S. DOI Complaint Processing Procedures, the Secretary's Policy on Equal Opportunity and Zero Tolerance of Discrimination and Harassment dated July 26, 2011, and the Southeast Regional Director's Policy on Resolution of Informal EEO Complaints dated September 21, 2012.
Dismissal, p. 4.
The Agency concluded that Complainant therefore had constructive knowledge of the relevant time periods for filing an EEO complaint. Complainant, however, contends that, contrary to the Agency's claim "within his reporting duty station and employee work office there were no bulletin boards or posters containing any EEOC information." Complainant's Appeal Brief, p. 1. Complainant further points out that the Agency's Certificate of Posting "which is meant to describe in detail the facility, address, and locations of the EEO posters is completely void of any information including a signature and date from the Management Official of the Park and the EEO Officer." Id., p. 2. A review of the record confirms Complainant's claims in this regard. See Procedural Dismissal, Attachment 1. In addition, while we note that the document entitled "Southeast Region Compliance Certification: EEO Bulletin Board Requirements" contains a signature of an Agency management official, it is not a sworn statement attesting to the truth of the document's contents under penalty of perjury. See id. Finally, we note that Complainant maintains that he contacted an EEO Administrator about some of the incidents raised in this claim in August 2013, but was told his complaint was without merit and he was not informed about the relevant time periods.
We note that, 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, 1992). We find that the Agency has not satisfied its burden of establishing that Complainant had constructive knowledge of the relevant time limits for contacting an EEO Counselor.
CONCLUSION
Accordingly, the agency's dismissal is REVERSED and the matter is REMANDED for a supplemental investigation in accordance with the ORDER below.
ORDER
The Agency is ordered to process the remanded claims 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 (M0416)
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 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. The requests 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 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
June 21, 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.
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