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

Equal Employment Opportunity Commission

Jun 14, 2021

Appeal No. 2021002196 (E.E.O.C. Jun. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jason B.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2021002196 Agency No. DON-20-00391-02036 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated February 3, 2021, dismissing his complaint alleging 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Crane Operator, WG-5725, at the Agency’s Mechanicsburg facility in PA. On October 6, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability, age, and reprisal for prior protected EEO activity when, on March 3, 2020 Complainant was reassigned from Code N0093 to Code NOS1 and placed in less prestigious job with no opportunity for a promotion within his field. Complainant noted his new position at Code NOS1 at was created and finalized after his effective start date and was not advertised as a vacant position with a major agency. On May 21, 2020 Complainant contacted his vice commander to discuss his reassignment and other concerns. 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. 2021002196 2 However, his vice commander did not seem to care at all and referred him back to his commander without a single issue being resolved. Complainant’s vice commander emailed him approximately one month later, on June 17, 2020. Complainant contacted an EEO counselor the same day. The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO counselor contact. In its dismissal the Agency found that although Complainant contacted an EEO counselor on June 17, 2020 and referenced his vice commander’s June 17, 2020 email response, June 17, 2020 was not the triggering date for determining timeliness because Complainant did not allege that the email response was discriminatory. The Agency determined that the act alleged to be discriminatory was Complainant’s reassignment on March 3, 2020. The instant appeal followed. On appeal, Complainant asserts that his complaint was timely. The Agency submitted a brief in response reiterating that Complainant’s contact with an EEO counselor was untimely. Regarding notice of the 45-day time requirement to contact an EEO counselor, the brief states that, “Complainant was advised of the 45-day deadline during the counselling period” and through prior correspondence “connected with previous administrative actions, such as the indefinite suspension.” 2 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 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. The regulation, however, requires an extension of the 45- day period if the complainant “was not notified of the time limits.” 29 C.F.R. § 1614.105(a)(2). We find that Complainant reasonably suspected discrimination upon his reassignment effective on March 3, 2020. The record shows that Complainant did not initially contact an EEO Counselor until June 17, 2020, which is beyond the 45-day time limit. Nevertheless, the Agency failed to notify Complainant of the 45-day time requirement. It is the Commission's policy that constructive knowledge of the 45-day time limit to contact an EEO counselor will be imputed to an employee when an employer has fulfilled its obligations under Title VII. Thompson v. Department of the Army, EEOC Request No. 05910474 (Sept. 12, 1991) (citing Kale v. Combined Ins. Co. of America, 861 F.2d 746 (1st Cir. 1988)). In Walker v. Department of Treasury, EEOC Request No. 01975445 (April 7, 1999) the Commission found that the agency failed to produce any evidence showing appellant had actual or constructive notice of the time limit for contacting an EEO Counselor when it had not, for instance, supplied a copy of any EEO poster(s) or an affidavit describing the time limit. 2 Complainant has two pending Merit System Protection Board (MSPB) appeals, his most recent MSPB appeal arose out of an indefinite suspension. 2021002196 3 In the instant matter, the Agency submitted a brief arguing that Complainant was advised of the 45-day deadline through correspondence “connected with previous administrative actions, such as the indefinite suspension.” The Agency cites to Case File at 80-87 to support this argument, but the deadline at Case File 80-87 instructs Complainant to request EEO counseling within 45- days of a proposed indefinite suspension, which is not at issue in the present case. Standing alone, the deadline at Case File 80-87 is insufficient to impute knowledge of the 45-day time limit to Complainant because it is limited to an indefinite suspension. Additionally, the Agency argues that, “Complainant was advised of the 45-day deadline during the counseling period.” However, this argument is insufficient to show that Complainant was given notice about contacting an EEO counselor in advance of the 45-day deadline. Without specific evidence that Complainant was given notice of the 45-day deadline at some point prior to March 3, 2020 we cannot conclude that Complainant’s contact with his EEO counselor was untimely. CONCLUSION The Agency's decision to dismiss Complainant's complaint was improper and is hereby REVERSED. The complaint is REMANDED to the Agency for further processing in accordance with this decision and the Order below. ORDER (E0618) 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. 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 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 (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 2021002196 4 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. 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 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 2021002196 5 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 (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. 2021002196 6 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