[Redacted], Charlene W., 1 Complainant,v.Thomas W. Harker, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jun 14, 2021

Appeal No. 2021001768 (E.E.O.C. Jun. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Charlene W.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2021001768 Agency No. 20-66294-02273 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated December 8, 2020, dismissing her complaint alleging 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, and Equal Pay Act 1963, as amended, 29 U.S.C. § 206(d) et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a District Micro Marker Manager, NF-04, at the Agency’s Navy Exchange Northern District in Virginia Beach, VA. On November 10, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Caucasian), national origin (United States), color (white), sex (female), religion (Jewish), age, disability, and reprisal for prior protected EEO activity when: 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. 2021001768 2 1. During Complainant’s third week of employment, she had a conversation with her supervisor and mentioned that she was Jewish. Her supervisor replied that he could tell she was Jewish. Complainant was surprised and asked him how he could tell, to mask his bias, her supervisor stated it was because she was from Montgomery County. Complainant found it to be an ignorant comment by a person who implied that he could tell she was Jewish from her appearance. 2. During Complainant’s third week of employment, she complained to her supervisor that the office administrative officer had hit on her and tried to friend her on Facebook, which made her uncomfortable. She said, the office administrative officer also called Complainant by her nickname, which Complainant repeatedly told her not to do and then tried to take Complainant’s government issued cell phone. Complainant’s supervisor told her to “get over it.” 3. On June 30, 2020, Complainant’s supervisor said she reminded him of Joan Rivers. Complainant was not flattered at the comparison at all since the only thing she had in common with Joan Rivers was her religion. She found the comment offensive. 4. On June 30, 2020, Complainant informed her supervisor that she had Autism Spectrum Disorder and that she was not asking for an accommodation. 5. On July 1, 2020, Complainant was with her half-Mexican employee and her supervisor stated that Mexican Spanish was mostly “slang” and the language was “lazy.” Complainant saw the look on her employee’s face and saw that she was offended and later complained to her supervisor about his comment. Complainant’s supervisor did not like that she complained. 6. On July 13, 2020, Complainant returned from the field with an injured ankle, and the office admin started pursuing her again asking unnecessary questions regarding her injury. Complainant did not reciprocate. Complainant’s supervisor told Complainant that the office administrative officer texted him and told him that Complainant was rude to her. Complainant spoke to the general manager and requested that the office administrative officer leave her alone, the general manager indicated that he would communicate that but instead he spoke to Complainant’s supervisor, which upset her supervisor even further. Complainant was told to pack her things the following day and move to the warehouse permanently. When she asked why, her supervisor said “because I am sick and tired of hearing about your medical problems . . . I think you have a victim mentality, and because you are unable to get over things.” 7. On July 14, 2020, Complainant was told that she was not allowed to drive a government vehicle. Complainant was told that she would assume the role of Vending Manager and her office would be moved to an undesirable warehouse location. 8. On July 15, 2020, Complainant requested disability parking at the warehouse due to her ankle injury. 9. On July 16, 2020, Complainant’s supervisor denied her request for disability parking. 10. On July 17, 2020, Complainant was called to her supervisor’s office, where he handed her a “confirmation of reasonable accommodation request” form and told her to fill it out or send an email that she would not be requesting an accommodation. Complainant was told this specifically because she had revealed that she had Autism Spectrum Disorder. 2021001768 3 Her supervisor knew she had other chronic conditions including ulcerative colitis and inflammatory polyarthritis. Complainant was given a few days to respond. 11. On July 24, 2020, Complainant sent an email to HR stating that she would be requesting an accommodation, but she need two weeks to work out the details with her doctor. 12. On July 24, 2020 Complainant hit her head on a shelf in the warehouse. Three days later, on July 27, 2020, Complainant’s supervisor brought an incident form to her and tried to convince her to sign the refusal to seek medical treatment. 13. On July 28, 2020, Complainant was emailed a copy of her 90-day review which was negative. Complainant was given 45 days to improve from May 30, 2020. Unlike her co- workers Complainant did not have coaching leading up to her review. Complainant’s review was given to her 4 days after she stated that she would be requesting an accommodation, and 1 day after she chose to fill out the incident report hitting her head. 14. On July 29, 2020, Complainant filed an administrative grievance regarding her 90-day review. 15. On July 30, 2020, Complainant learned that a male employee had been promoted to Vending Manager of Bethesda. The male employee had been given preferential treatment for office location and a pay increase for a job that he did not officially start until October. The decision showed favoritism towards the employee because he was a male. Complainant had been doing the same job without additional compensation. 16. On August 3, 2020, Complainant submitted a reasonable accommodation form to HR. 17. On August 4, 2020, Complainant submitted a letter to HR detailing discriminatory treatment so that an investigation would be conducted. 18. On August 13, 2020, Complainant spoke to the EEO office about the discriminatory treatment she endured. Complainant asked if she could fill out the forms electronically because her hands hurt, but she was informed that she had to write everything by hand. 19. On August 14, 2020, Complainant received a response to her grievance. The subject matter on page 2 stated, “NOTICE OF SEPARATION OF EMPLOYMENT.” Complainant’s supervisor later claimed that it was a typo. 20. On August 17, 2020, Complainant submitted a step 2 grievance to management. 21. On August 18, 2020, Complainant received an updated training schedule that was more detailed than the ones she had previously received. The scheduled appeared to be extremely taxing on her ankle injury that she was trying to heal and her disability. 22. On August 18, 2020, Complainant submitted a doctor’s note requesting sedentary office work, and she emailed her supervisor her concerns with his new training plan. 23. August 24, 2020, Complainant received a Letter of Caution which stated that she was insubordinate for cancelling training and having computer issues. 24. August 25, 2020, Complainant sent her supervisor a written response to the Letter of Caution explaining that it was false. 25. On August 26, 2020, the new Vending Manager directed Complainant’s employees not to take vacation time that had already been scheduled and approved. 26. On August 26, 2020, Complainant’s supervisor tried to change her handicapped parking spot to a government vehicle parking spot. 27. On August 28, 2020, Complainant received a revised training schedule that she was unable to do because of her disability. 2021001768 4 28. On September 3, 2020, Complainant’s supervisor called her and told her that he heard from a reliable source that she’s been saying things that she should not be saying, and that if her behavior continues, she will be terminated. 29. On September 4, 2020, Complainant sent a letter to management documenting things that occurred since she filed an informal EEO complaint. 30. On September 8, 2020, Complainant followed up on her reasonable accommodation request. Complainant received an email response the following day requesting to speak with her autism advocate to see if she needed vocational rehabilitation. 31. On September 9, 2020, the Agency indicated that Complainant would be terminated. 32. On September 10, 2020, Complainant received an email from her supervisor letting her know that 90% of her time was supposed to be spent in the field, and that there were only 8 hours of sedentary work available per week. 33. On September 10, 2020, Complainant slipped and reinjured her ankle at the warehouse and made it clear that she would be seeking medical treatment. 34. On September 25, 2020, Complainant received a Notice of Termination and her paycheck was significant lower. The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), due to the untimely filing of the formal complaint. In so doing, the Agency found Complainant received the Notice of Right to File A Discrimination Complaint (Notice) on October 21, 2020, at her attorney’s address on record and filed her formal complaint on November 10, 2020, which was beyond the 15-day regulatory filing deadline. The instant appeal followed. On appeal, Complainant, through her attorney, argues that her formal complaint was filed timely. The Agency has not submitted a statement or brief in response. ANALYSIS AND FINDINGS 29 C.F.R. § 1614.106 provides in pertinent part that a formal complaint must be filed within 15 days of receipt of the notice of the right to file a formal complaint. An agency shall dismiss a complaint or portion of the complaint if it fails to comply with the 15-day time limit under 29 C.F.R. § 1614.107(a)(2), unless the time limit is extended in accordance with 29 C.F.R. § 1614.604(c). Under 29 C.F.R. § 1614.604(c) the time limit is subject to waiver, estoppel and equitable tolling. The Commission has previously held that an agency may not dismiss a complaint based on a complainant's untimeliness, if that untimeliness is caused by the agency's action in misleading or misinforming the complainant. See Elijah v. Dep't of the Army, EEOC Request No. 05950632 (Mar. 29, 1996). The instant record contains a copy of a Notice of Right to File A Discrimination Complaint dated October 19, 2020, addressed to Complainant. The Notice informed Complainant that she had to file a formal complaint within 15 calendar days of receipt of the Notice. 2021001768 5 On December 8, 2020, the Agency dismissed her formal complaint on the basis that it was not timely filed. According to the Agency, a FedEx Priority overnight delivery receipt (tracking number 8137 8077 1033) shows the Notice was delivered to Complainant’s attorney by mail on October 21, 2020. In its dismissal, the Agency found that Complainant filed her formal complaint on November 10, 2020, which was 20 days after receipt of Notice and consequently beyond the time period established by 29 C.F.R. § 1614.106. On appeal, Complainant does not dispute that she filed her formal complaint 20 days after receipt of Notice. Rather, Complainant argues her complaint was filed timely because the Notice contained language that gave her five days for receipt in addition to the required 15 days to file her complaint. The Notice unambiguously states the following: A complaint shall be deemed timely if it is received or postmarked before the expiration of the 15-calendar day filing period, or, in the absence of a legible postmark, it is received by mail within five days of the expiration of the filing period. * * * For timeliness purposes, it will be presumed that this notice was received within five calendar days after it was mailed for delivery via regular mail. [Emphasis added]. The Notice allows for an additional five days for receipt for regular mail deliveries or deliveries with an illegible postmark. Here, Complainant has not argued or put forth any evidence demonstrating her Notice was delivered by regular postal mail or had an illegible postmark. In fact, the record shows the Notice was delivered overnight by FedEx Priority service with a legible shipping postmark. Accordingly, the Commission finds that Complainant has provided insufficient justification or explanation to warrant an extension of the time limit for filing the complaint. CONCLUSION Accordingly, the Agency's decision to dismiss the complaint was proper and is hereby AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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 2021001768 6 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, a 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). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) 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. 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. 2021001768 7 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 14, 2021 Date