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

Equal Employment Opportunity Commission

Jul 12, 2021

Appeal No. 2021002232 (E.E.O.C. Jul. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lee R.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2021002232 Agency No. 20-00406-02467 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated January 27, 2021, dismissing his 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supply Technician, GS-6, at the Agency’s NAVSUP Fleet Logistics Center - Puget Sound in Bremerton, Washington. He later resigned from that position effective August 3, 2019. On December 30, 2020, Complainant filed a formal EEO complaint alleging that: 1. The Agency subjected Complainant to disparate treatment on the bases of disability and reprisal for protected EEO activity (EEOC No. 550-2017-00041X and Agency No.16- 00406-00364/Settlement Agreement) when: a. From February 2018 to 3 August 2019, Complainant was not reassigned to a GS-6 office position and provided appropriate accommodations for his disability. 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. 2021002232 2 b. On 12 July 2019, Complainant was issued a Notice of Proposed Indefinite Suspension. c. In June 2019, Complainant was accused of committing medical fraud and targeted for suspension. d. From 2018 to July 2019, Complainant had a doctor's note for a work heater as an accommodation, but had no way to use it. e. In 2018, Complainant was hired for a GS-6 position at Bangor, Bldg. 6403, but was placed in a WG-5 position to perform warehouse work 8 to 9 hours a day. f. From 2018 to July 2019, Complainant's ergonomic chair was replaced with a metal chair and he had to use a wheeled cart for a desk. g. In February 2018, Complainant was not assigned to the credit card department, while two new employee were. h. In 2018, Complainant did not waive his rights to sue for damages arising from a settlement agreement. i. From August 2017 to December 2017, Complainant was not provided accommodations for his disability after he was transferred from a Puget Sound Naval Station (PSNS) front desk position in Household Goods. j. In 2016, Complainant was denied a step promotion to a GS-7 Hazmat Crimp Technician position for filing disability claims. k. Between 2014 and 2017, Complainant requested handicapped parking, but was told the one handicap parking space was assigned to a co-worker, an African American. l. On an unspecified date, Complainant was told there were no desk jobs for GS employees. m. On unspecified dates, Complainant was required to provide medical documentation each time he was transferred to a department or assigned a new supervisor. 2. The Agency subjected Complainant to disparate treatment on the basis of reprisal for protected EEO activity (EEOC No. 550-2017-00041X and Agency No.16-00406- 00364/Settlement Agreement) when: n. On 3 August 2019, Complainant submitted a resignation (constructive discharge). o. In July 2019, during an investigation Complainant was denied Garrity rights. p. In May 2019, Complainant was issued a Letter of Caution and denied union representation. q. In 2019, Complainant provided testimony concerning discriminatory and harassing actions toward two African American females. r. From 2017 to July 2019, Complainant was denied requests for work limitations provided by the Naval Branch Health Clinic. 3. The Agency subjected Complainant to disparate treatment on the basis of race (Native American), disability, and reprisal for protected EEO activity (EEOC No. 550-2017- 00041X and Agency No.16-00406-00364/Settlement Agreement) when: 2021002232 3 s. From 2018 to July 2019, Complainant was not allowed to perform work on his desktop computer, but was instead required to use a tablet. t. From 2017 to July 2019, Complainant was required to bend, squat, and kneel to complete WG-5 warehouse work in violation of work restrictions. 4. The Agency subjected Complainant to disparate treatment on the basis of race (Native American) when: u. From February 2018 to July 2019, Complainant was told that he had body odor. The Agency dismissed claims (a)-(u) for untimely EEO Counselor contact. The Agency also dismissed claims (i)-(k) because they were addressed in a previous settlement agreement between Complainant and the Agency, and it dismissed claims (a) and (e) because they were claims for breach of the settlement agreement. Further, claims (c), (h), (l), and (u) were dismissed for failure to state a claim pursuant to 29 C.F.R. 1614.107(a)(1). Claims (d)-(g) and (o) were additionally dismissed because they were not brought to the attention of the EEO Counselor during the counseling period. Lastly, claims (l) and (m) were also dismissed for vagueness. On appeal, Complainant states government employees discriminated against him and decided without a court hearing or trial that he was guilty. He acknowledges that the dates of harm included in his complaint are from 2019 and that his complaint was not filed until 2020, more than 45 days after the alleged harm, but he argues that he is alleging a pattern of continued reprisal dating back to the settlement agreement and continuing. Complainant states he is also notifying the Agency and the EEOC that the settlement agreement has been violated. He argues these violations should give the EEOC the authority to enforce and uphold agreements separate from the 45-day reporting period for new complaints to move forward. The Agency contends in its appellate brief that the complaint was properly dismissed for untimely EEO counselor contact, and that Complainant’s allegations of breach are time-barred. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO 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 forty-five (45) days of the effective date of the action. EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides for the dismissal of complaints where the complainant did not initiate contact with an EEO 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. EEOC Regulation 29 C.F.R. § 1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by 2021002232 4 circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission. In his complaint, Complainant alleged numerous acts of discrimination by the Agency occurring between 2014 and August 3, 2019. His initial EEO contact for these claims occurred on September 17, 2020, more than a year after the last act of alleged discrimination. This is well outside the 45 days proscribed by 29 C.F.R. § 1614.105(a)(1). Complainant acknowledged on appeal that the dates of harm included in his complaint are from 2019 and that his complaint was not filed until 2020, more than 45 days after the alleged harm. However, his argument that he is alleging a pattern of continued reprisal dating back to the settlement agreement and continuing is not persuasive. Complainant does not allege that he was unaware of the time limits, and indeed, the record shows he previously contacted an EEO Counselor in other cases which shows he is familiar with the process. He does not provide any explanation to support that he was unaware these events were discriminatory at the time they occurred. He does not provide any explanation to support that he was unable to contact an EEO counselor sooner than September 17, 2020. 29 C.F.R. § 1614.105(a)(2). Additionally, the settlement agreement states that in the event Complainant believes the Agency has failed to comply with the terms of the settlement agreement, 29 C.F.R. § 1614.504 will govern. EEOC Regulation 29 C.F.R. § 1614.504(a) provides where a complainant believes that an agency has failed to comply with the terms of a settlement agreement, the complainant shall notify the agency EEO Director, in writing, of the alleged breach within 30 calendar days of when the complainant knew or should have known of the alleged noncompliance. The settlement agreement also specifically provides, “[t]he Complainant shall notify the Agency’s EEO Office, in writing, of the alleged noncompliance within 30 days of when the Complainant knew or should have known of a breach of this Agreement.” Therefore Complainant’s contention that his claims were also a notification of breach of the settlement agreement cannot explain his delay in contacting an EEO counselor since he should have notified the Agency of any alleged breach within 30 days. Complainant has not provided any evidence to support that he was incapacitated from timely contacting an EEO Counselor. Complainant has not provided sufficient justification to warrant tolling of the time limits for contacting an EEO Counselor. His EEO Counselor contact was not timely. As such, the Agency correctly dismissed the complaint.2 CONCLUSION Accordingly, the Agency’s decision was proper and is AFFIRMED. 2 Since the final agency decision is being affirmed as to dismissal of all claims due to untimely EEO Counselor contact, we need not address the Agency’s other grounds for dismissal here. 2021002232 5 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 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). 2021002232 6 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. 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 July 12, 2021 Date