Garry H.,1 Complainant,v.James E. McPherson, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Sep 30, 2020

2020003952 (E.E.O.C. Sep. 30, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Garry H.,1 Complainant, v. James E. McPherson, Acting Secretary, Department of the Navy, Agency. Appeal No. 2020003952 Agency No. 20-62381-01694 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency final decision, dated June 11, 2020, dismissing a formal complaint of unlawful employment discrimination in violation of 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Wiper for the Agency’s Military Sealift Command - Atlantic based out of Norfolk, Virginia. According to the EEO Counselor’s Report, Complainant contacted the EEO Counselor on April 6, 2020 regarding claims of “verbal abuse and a hostile work environment.” Informal efforts to resolve Complainant’s concerns were unsuccessful. Onn May 12, 2020, Complainant filed the instant formal complaint based on age, disability (perceived), and in reprisal for prior protected EEO activity. The claims were framed as follows: a. Approximately April 1, 2020, through April 13, 2020, Complainant, while confined onboard the ship, saw Dock Engineer bring a case of cigarettes onto 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. 2020003952 2 the ship that morning. Complainant alleges that the ship Captain had his driver go get SIM cards for some of the men that morning, excluding Complainant. The Captain took $18 for the purchase of a SIM card and provided a $12 SIM card back to Complainant, left Complainant wondering what happened to the remaining six dollars. b. Approximately March 30, 2020 through April 13, 2020, Complainant left the ship in the afternoon to get supplies from the Exchange. When he returned to the ship, the Captain was not happy and put him in quarantine for 14 days. Dock Workers and Dock Engineers., however, came on and off the ship freely. Other Military Sealift Command (MSC) ships personnel docked there were also able to go to the Exchange freely. c. Approximately March 20, 2020 through March 30, 2020, Complainant was confined to the ship for over 10 days without any way to obtain personal supplies. In contrast, other non-MSC ships personnel on the base were permitted to obtain supplies from the Exchange. He was not made aware of the need for supplies prior to being confined to the ship and his complaints were ignored. On June 11, 2020, the Agency issued a final decision dismissing the formal complaint. Specifically, the Agency dismissed “your claim in reference (a) [in] accordance with 29 C.F.R. 1614.107(a)(1), for failure to state a claim.”2 Further, the Agency noted that on May 12, 2020 Complainant filed “additional allegations you were not counseled on and were not like or related to your formal complaint . . .”.3 The Agency also dismisses those allegations for untimely EEO Counselor contact. In closing, the decision also includes an incomplete sentence that cites the requirement that a complaint be filed within fifteen days and the prohibition against claims alleging dissatisfaction with the processing of an EEO complaint. Complainant filed the instant appeal. ANALYSIS AND FINDINGS As a preliminary matter, we find that the instant record reveals deficiencies both in EEO counseling and in the framing of Complainant’s claims. We first examine the timing of Complainant’s contact with the EEO Counselor. According to Complainant, he first attempted to contact the EEO office “back in January,” but his voice message was not returned. 2 It is unclear whether in stating “reference (a)” the Agency means claim (a) or the entire complaint. 3 Because the Agency does not describe these “additional allegations,” we are uncertain whether the Agency is referring to claims (b) and (c) or other unidentified claims. 2020003952 3 Complainant called again, on February 24, 2020, was informed about the forty-five day time limitation4, and told the office would look into his concerns. The EEO Counselor’s Report, however, cites April 6, 2020 as the date of initial contact. The date of the allegedly discriminatory event is reported as February 18, 2020. Yet, the claims, as defined in the Notice of Right to File Individual Complaint (hereinafter “Notice”) and the final decision, references March 20, 2020 as the earliest date of alleged discrimination. Next, we consider the claims themselves. The EEO Counselor’s Report simply identifies Complainant’s concerns as “non-sexual harassment ‘verbal abuse and hostile work environment’.” The report does not contain any further elaboration, summary, or description of Complainant’s allegations. The record does contain an “attachment,” a statement by Complaint, but it is unclear whether the document is the attachment referenced in the formal complaint or part of the EEO Counselor’s Report. Therein, Complainant describes numerous aspects of life onboard ship that he is dissatisfied with, including the following: being expected to know all the ship acronyms, being “made fun of” anytime he asks a question, having his room inspected when he is not present, and the impracticality of checking all his emails each day. In another document, Complainant presents a chronology of events that describes more severe incidents occurring between November 20, 2019 through March 30, 2020. Upon his arrival on the ship, Complainant was placed in a room without linens for his bed and not provided dinner. Approximately one week later, he was assigned to clean a toilet.5 In December 2019, he was not given PPE (personal protective equipment) when assigned to clean up sewage water. Complainant supervisor purportedly yelled at him for taking a break or not completing a task, when previously told to “take your time” with the assignment. On January 11, 2020, Complainant was issued a Letter of Caution for violating several ship orders.6 Finally, the chronology included Complainant’s need for supplies, the SIM card incident, and being placed in quarantine for fourteen days (i.e. the events set forth in claims (a), (b), and (c)). As for the formal complaint itself, Complainant identifies the dates of alleged discrimination as November 21, 2019 through April 18, 2020. In the space provided for describing the claims, Complainant wrote “see attachment”. The instant record, however, shows that the complaint form is not immediately followed by any attachment. We are confused, as noted above, as to whether Complainant’s statement and chronology were part of the formal complaint and/or presented to the EEO Counselor. 4 Although Complainant explains he was informed he had forty-five days to “file a complaint”, 29 C.F.R. § 1614.105(a)(1) requires individuals to contact an EEO Counselor within forty-five days of the allegedly discriminatory event. 5 Complainant asserts this task is outside his job description. 6 The Letter expressly stated that while it would not be placed in Complainant’s eOPF (electronic Official Personnel Folder), it would be retained in his disciplinary file and “may be cited in any future disciplinary or adverse action.” 2020003952 4 Therefore, to the extent that the Agency dismissed the complaint for untimely EEO Counselor contact or on the grounds that allegations were not counseled, we do not find its decision is supported by the record. Thus, the Agency has failed to substantiate the bases for its final decision. See Marshall v. Dep’t of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991). Similarly, we do not find its dismissal for failure to state a claim was appropriate. The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. 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, .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. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Here, while being expected to know acronyms or “being made fun of” for asking a question may not rise to the level of stating a claim of unlawful discriminatory harassment, the record provided by the Agency reflects far more. Complainant alleges that he was assigned to clean toilets, denied even protective gloves while cleaning up sewage with rags, subjected to yelling and increased scrutiny over his assignments. A formal complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant cannot prove a set of facts in support of the claim which would entitle the complainant to relief. The trier of fact must consider all of the alleged harassing incidents and remarks, and considering them together in the light most favorable to the complainant, determine whether they are sufficient to state a claim. Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). A fair reading of the instant complaint, demonstrates a broad claim of harassment comprised of a series of sufficiently severe or pervasive actions. See id. Moreover, Complainant has presented several discrete acts, including the January 11, 2020 Letter of Caution and March 30, 2020 Memorandum re “Restriction of Movement Order and Placement on Weather/Safety Administrative Leave” for two weeks. These allegations concern a harm or loss to a term, condition, or privilege of employment and are sufficient to render Complainant an “aggrieved” employee. Therefore, we find that the Agency’s dismissal of the complaint for failure to state a claim was improper. The formal complaint, as clarified herein, is remanded to the Agency for further processing. CONCLUSION The Agency’s final decision is REVERSED. The case is REMANDED to the Agency for further processing in accordance with this decision and the ORDER below. 2020003952 5 ORDER (E1016) 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 was issued. 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 was issued, 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 (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 2020003952 6 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2020003952 7 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 30, 2020 Date