Hollis B.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Aug 21, 2019

2019002259 (E.E.O.C. Aug. 21, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Hollis B.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 2019002259

Agency Nos. DON-18-62381-02221 & DON-19-62381-00041

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated February 7, 2019, 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. Upon review, the Commission finds that
Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for
untimely EEO Counselor contact.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supply Utilityman
on the USNS Richard E. Byrd naval vessel.

On October 4, 2018, Complainant initiated EEO contact alleging that the Agency subjected him
to hostile work environment harassment on the bases of national origin (Hispanic) and reprisal
for prior protected EEO activity (prior complaint) when: (1) on January 5, 2018, a Chief Steward
(CS1) (Asian) stated that Black people are lazy and that Hitler should have annihilated Jewish
people because they control banks all over the world now and, when Complainant disagreed with
his comments, CS1 used foul language against and bullied Complainant; and (2) on April 1 and
15, 2018, CS1 asked Complainant about the status of his EEO complaint against another

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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coworker.2 On January 14, 2019, Complainant filed a formal complaint reiterating his claim of
harassment by CS1.

In a decision dated February 7, 2019, the Agency dismissed Complainant’s complaint pursuant
to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency stated that
Complainant initiated EEO contact beyond the 45-day statutory timeframe and failed to justify
an extension of the timeframe. The Agency provided a class roster, dated June 21 and 22, 2017,
for “Equal Employment Opportunity, Prevention of Sexual Harassment, No Fear.” The roster
bears Complainant’s printed name and signature.

The instant appeal from Complainant followed. On appeal, Complainant stated that he initiated
EEO contact on June 11, 2018 and the Agency docketed the matter as Agency Number DON-18-
62381-02221.3 Complainant stated that he could not reach the EEO Representative for an
extended period due to a technical problem with Agency telephone systems. Complainant stated
that he had to renew his harassment claim in August 2018 and does not have access to the
records for his June initial contact. The record contains a statement from Complainant dated
June 11, 2018 and fax-stamped June 26, 2018. In response, the Agency asked the Commission
to sustain its closure of DON-18-62381-02221 and its dismissal of DON-19-62381-00041.

ANALYSIS AND FINDINGS

In relevant part, 29 C.F.R. § 1614.107(a)(2) provides that an agency shall dismiss a complaint or
a portion of a complaint that fails to comply with the applicable time limits contained in 29
C.F.R. § 1614.105. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of an Equal Employment Opportunity
Counselor within 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.

2 Complainant departed the USNS Richard E. Byrd vessel on April 26, 2018.

3 The record contains a memorandum dated May 16, 2018 from the Command’s EEO
Complaints Manager regarding DON-18-62381-02221. The subject of the memorandum is
“Request to file an EEO Complaint” and it provides a “Notice of Aggrieved Person’s Rights and
Responsibilities” starting with the counseling process. The memorandum was hand-delivered to
Complainant on May 16, 2018 and stated that Complainant should read, initial, sign, and return
the enclosures within 15 calendar days of receipt. Further, the record contains a memorandum
dated October 4, 2018, closing DON-18-62381-02221 for failure to further contact the Agency
regarding the matter until June 26, 2018. The memorandum referred to a 45-calendar day
timeframe to initiate counseling and stated “[t]his case number is being closed to untimeliness.”
The October memorandum did not provide appeal rights and stated “[t]he contact closure notice
does not preclude you from contacting this office in the future.”
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Under 29 C.F.R. § 1614.105(a)(2), 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.

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. Dep’t of
Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Dep’t of Defense,
EEOC Request No. 05920506 (August 25, 1992)).

Based on the specific circumstances herein, we find that the Agency improperly dismissed the
complaint for untimely EEO Counselor contact. There is confusion regarding Complainant’s
initial contact on March 16, 2018, and subsequent contact in June 2018. The Agency stated that
it gave Complainant a contact package when he initiated contact on March 16, 2018, but it
provided him a 15-day return timeframe consistent with a Notice of Right to File a Formal
complaint. In addition, the Agency did not provide appeal rights to this Commission regarding
the matter identified as DON-18-62381-02221 and stated that Complainant could contact the
Agency in the future regarding the matter. To say the least, what transpired here regarding
Complainant’s claim of harassment between January 2018 and April 2018 by CS1 is confusing
and it is only fair we allow Complainant an opportunity to address his claims on the merits.
Therefore, we find that the Agency has not met its burden to support its dismissal decision.

CONCLUSION

Accordingly, we REVERSE and REMAND the Agency's final decision dismissing
Complainant's complaint.

ORDER (E0618)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108.
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.
As provided in the statement entitled "Implementation of the Commission's Decision,” the
Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of
acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the
investigative file and notice of rights, and 3) either a copy of the complainant’s request for a
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hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did
not receive a response from complainant by the end of the election period.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
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.
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).
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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.
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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

August 21, 2019
Date