0120162062
10-03-2016
Irvin W.,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
Irvin W.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120162062
Agency No. 166247300857
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 26, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Laborer / WG-3502-04. His duty stations included the Naval Air Station, Port Magu and the Naval Base Port Hueneme at Port Hueneme, California. Both facilities are located within the "NAVFAC's SW's area of responsibility."
On March 28, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for "six previous" protected EEO activities and that "since 2015, he is being subjected to a hostile work environment," when:
1. On or around March 9, 2015, his reasonable accommodation request was denied;
2. On or about September 30, 2015, the Supervisory Production Manager (S1) and the Facilities Sustainment Superintendent (S2) interfered with the selection process, which led to his non-selection for a Vehicle Equipment Specialist positions;
3. On or about September 30, 2015, the two named management officials interfered with the selection process which led to his non-selection for two Apprenticeship positions;
4. On January 6, 2016, the Associate Counsel (S3) interfered with, and harassed, his witnesses in a prior case;
5. During January of 2016, S1 was overheard telling another official to lie when responding to the EEO personnel or the investigator regarding Complainant's prior case (15-62473-02737);
6. On an unspecified date, S2 interfered in the promotion process by only hiring employees from the Navy Mobile Construction Battalion 40 for NAVFAC-SW positions;
7. On an unspecified date, S1 and S2 ignored a doctor's request to evaluate Complainant's work area, which caused Complainant's neck injury to worsen; and
8. On an unspecified date, S2 made derogatory comments about Complainant.
The Agency labeled the claims using the letters a) through g). The Agency framed the issues as alleging discrimination, on the basis of reprisal, when:
a) "On or about 30 September 2015, Complainant was not selected for a vehicle Equipment Specialist (GS-1601-9/11) due to interference by two management officials;
b) On or about 30 September 2015, Complainant was interviewed, but not selected for two NAVFAC SW apprentice positions as a result of [named management officials'] inappropriate influence over the selection process;
c) On an unspecified date, a management official (S1) interfered in the promotion process by hiring only employees from the Navy Mobile Construction Battalion Forty for NAVFAC positions;
d) On an unspecified date, management ignored the physician's request to evaluate Complainant's work area;
e) On an unspecified date, S1 made derogatory comments about Complainant;
f) On or about 6 January 2016, the Associate Counsel (S2) interfered with potential witnesses to a prior EEO complaint; and
g) On or about 9 March 2015, a "[named management official] refused to consider [Complainant's] 'son's development of bar palsy, a nervous condition' in granting or denying reasonable accommodation to [Complainant].'"
The Agency dismissed claims a) through f) and claim g) for untimely EEO contact. The Agency dismissed claim f) as a spin-off complaint, reasoning that Complainant was merely expressing dissatisfaction with the processing of his complaints.
The record shows that Complainant has filed several complaints against the Agency. In King v. International Boundary and Water Commission, EEOC Appeal No. 0120112384 (March 19, 2013), the Commission found that Complainant had been retaliated against when his supervisor informed his co-workers of his EEO complaint. Complainant was transferred to a different position location, but works for the same agency named in the instant complaint.
The EEO Counselor's Report for an earlier claim (DON 15-62473-02737) shows that Complainant made initial EEO contact on March 17, 2015. Agency Exhibit 2. He filed a complaint on July 14, 2015. He requested a hearing, which has not yet been scheduled.
On December 28, 2015, he again made EEO contact (DON 16-62473-00857). The instant complaint was filed on March 28, 2016. This action is against the same agency with the same area of responsibility as the Agency named in EEOC Appeal No. 0120112384. He alleges interference and retaliation based on the complaint that he filed on July 14, 2015.2
On January 9, 2016, he filed another complaint. That complaint similarly alleged a hostile work environment, interference with the EEO process, harassment of a witness and management's telling a witness to lie.
In response to Complainant's claim that he was subjected to harassment and a hostile environment due to the interference of Agency counsel, the Associate Counsel denied that her actions constituted harassment. She (S2) responded to his claim in a statement, dated March 11, 2016.
The Agency Decision
The Agency dismissed the claims for untimely EEO contact and as spin-off claims. Although Complainant's complaint included three claims of alleged discrimination involving interference with the promotion process, failure to accommodate his request for an evaluation of his work area and derogatory comments, the Agency dismissed, reasoning that Complainant failed to specify a date on which the acts occurred. The Agency found that the claims are not part of the same unlawful employment practice. The Agency concluded the claims should be dismissed for untimely EEO contact. With regard to claim f), the Agency concluded that Complainant failed to state a separate and independent claim for which relief could be granted. This appeal followed.
Complainant asks the Commission to reverse the Agency's dismissal. The Agency argues that the dismissal should be upheld because it maintains that all of the claims were untimely.
ANALYSIS AND FINDINGS
Timeliness
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that the complaint of discrimination should 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 45 days of the effective date of the action.
EEOC Regulations provide that the Agency or the Commission shall extend the time limits when the individual or the record shows that there existed circumstances beyond the complainant's control that prevented timely contact with an EEO counselor.
Complainant formally filed an EEO complaint, alleging discrimination ongoing reprisal, hostile work environment and interference with the EEO process. The record discloses that the alleged ongoing harassment included discriminatory events that occurred from March 2015 to September 30, 2015. Complainant initiated contact with an EEO Counselor on December 28, 2015, which is beyond the forty-five (45) day limitation period for the March and September 2015 claims. The record shows, however, that he alleged another retaliatory incident occurred on January 6, 2016. This January 6, 2016 EEO contact was timely made.
Further, 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 Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (June 10, 2002). The Court held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id.
In this case, we find that Complainant has sufficiently alleged a hostile work environment and that his claims are part of the same alleged retaliatory practice.
Moreover, Complainant clearly exercised due diligence in bringing his hostile environment matters to the attention of the Agency. Therefore, we find his EEO contact was timely.
Spin-Off Complaint
The EEOC regulation 29 C.F.R �1614.107(a)(8) provides for the dismissal of spin-off complaints. In this case, Complainant is alleging that the interference was part of the ongoing harassment by three management officials, including the Associate Counsel. The Agency conducted an investigation into the claims of interference by the Associate Counsel, but the Agency determined that its findings were "inconclusive." We disagree that these claims were properly dismissed as spin-off complaints.
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 and pursuant to 29 C.F.R. � 1614.107(a)(8) as a spin-off complaint.
CONCLUSION
Accordingly, we REVERSE the Agency's Final Decision and REMAND the matter to the Agency for further processing consistent with the Order below.
ORDER
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 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 tends 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
October 3, 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 S2 stated that she did not harass or intimidate the witness, but she acknowledged that she introduced herself and proceeded to explain the process to the witness. She then "questioned him and inquired about the allegations that Complainant had made and asked his personal opinion regarding each claim and any personal experience he had in relation to the allegations." She stated that the witness, "as a DOD employee has a duty to cooperate with Agency officials during investigations." She added that, as a DOD employee, all witnesses to an EEO matter are required to answer truthfully in preparation for proceedings.
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