[Redacted], Tod P., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Nov 28, 2022

Appeal No. 2022003107 (E.E.O.C. Nov. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tod P.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 2022003107 Hearing Nos. 530-2016-00310X 530-2018-00373X Agency Nos. DLAN-15-0177 DLAN-16-0089 DLAN-16-0317 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s three final decisions issued on April 18, 2022, concerning his equal employment opportunity (EEO) complaints alleging 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 Business Process Analyst (GS-13) at the Agency’s Defense Logistics Agency (DLA), J3-OC, in New Cumberland, Pennsylvania. 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 2022003107 Complaint 1 - Agency case number DLAN-15-0177 On August 8, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African American) and sex (male) when: 1. Complainant was not given the opportunity to participate in the development of his 2015 Performance Plan, which was issued to him on February 24, 2015. Complainant alleged that the Performance Plan included a number of changes, including the new critical job element of “Communication and Teamwork”; and added the following quantified penalty levels: four documented instances of “incorrect/inaccurate outcomes,” “improper communication and/or inappropriate teamwork” is a Minimally Successful rating and six instances is an Unsuccessful rating. Complainant alleged that he was discriminated against based on race and sex, and in reprisal for initiating an informal EEO complaint on March 2, 2015, when: 2. On March 17, 2015, Complainant learned that there were two new complaints lodged against him by coworkers, and that management was maintaining a record of the complaints in an Agency file; and 3. On April 14, 2015, Complainant heard a DLA Distribution J3 coworker (CW) discuss her selection as a DLA Continuous Process Improvement Coordinator, who commented that she thought another J3 coworker, who was also female but of a different race than Complainant, was originally selected for the position. On April 15, 2015, Complainant saw an article on the “DLA Today” website referencing CW as the DLA Continuous Process Improvement Coordinator. Complainant alleged that he was bypassed and not given an opportunity to apply for the position. Complainant alleged retaliation for prior EEO activity when: 4. On or about July 8, 2015, Complainant’s Supervisor initiated action with Human Resources Center to change Complainant’s position description and bargaining unit status to non-union/non-bargaining. Complaint 2 - Agency case number DLAN-16-0089 Complainant filed an EEO complaint alleging discrimination based on race and sex, and in reprisal for prior protected EEO activity, when: 5. on May 28, 2016, Complainant learned that he was rated as not qualified for a position of Supply Systems Analyst (GS-13/14), announced under vacancy number DLAB-15-1387056-MP. 3 2022003107 Complaint 3 - Agency case number DLAN-16-0317 Complainant filed an EEO complaint alleging a hostile work environment based on his race, color, sex, and disability, and in reprisal for prior EEO complaints, for 19 incidents. Examples of the alleged harassment included, on September 13, 2016, Complainant’s Supervisor did not grant the full requested official time for Complainant’s EEO complaint; on September 8, 2016, Complainant’s Team Lead informed Complainant that he should have known that the Agency would reassign all J3 Audit Readiness Analysis work to him; and on August 12, 2016, Complainant’s Supervisor rescinded Complainant’s recently approved telework agreement, which granted him two days of telework per week. The Agency dismissed two incidents and accepted the remaining 17 incidents for investigation. Hearing Requests At the conclusion of the investigations, Complainant was provided copies of the investigative files, and he requested hearings before an EEOC Administrative Judge (AJ). On June 25, 2019, Complainant’s attorney emailed the AJ to inquire about the potential to dismiss Complainant’s hearing requests without prejudice due to issues with Complainant’s health, and she requested to consolidate the two hearing requests (530-2016-00310X and 530-2018-00373X). The AJ agreed to a dismissal order and to join the matters. On June 28, 2019, the AJ issued the dismissal order without prejudice on the two hearing requests. The AJ informed Complainant that he must reinstate his hearing requests by June 30, 2020, by email. If Complainant failed to timely submit his request, Complainant would be precluded from a hearing, and the Agency would issue a final decision. On April 18, 2022, the Agency issued three final decisions for the complaints. In each decision, the Agency noted that the AJ stated that Complainant needed to reinstate his hearing request by June 20, 2020, and that Complainant failed to do so. As such, the Agency issued the final decisions finding that Complainant did not establish discrimination or harassment as alleged. The instant appeal followed, and Complainant filed a statement in support of his appeal. Complainant asserts that the Agency erred in stating that his deadline to reinstate his hearing request was June 20, 2020, and that it was actually June 30, 2020. Further, Complainant provided evidence to show that his attorney timely emailed his request to reinstate his hearing to the AJ on June 25, 2020. The Agency did not respond to Complainant’s appeal. ANALYSIS AND FINDINGS Here, we find that Complainant properly complied with the AJ’s order when his attorney emailed Complainant’s request to reinstate his hearing on June 25, 2020, prior to the correct deadline of June 30, 2020, and not June 20, 2020, as noted by the Agency. It is not clear what has happened since Complainant’s attorney emailed the request to reinstate Complainant’s hearing. We note that the Commission’s records reveal that the assigned AJ is no longer with the EEOC and there is currently no hearing request for Complainant, beyond the AJ’s dismissal on June 28, 2019. 4 2022003107 Since the Agency did not respond to Complainant’s appeal, it did not provide its insight regarding the status of Complainant’s hearing request, if any. Regardless, we find that Complainant’s request to reinstate his hearing request was timely and in compliance with the AJ’s order. As such, the Commission retained jurisdiction over his complaints, and the Agency had no jurisdiction to issue the final decisions. See Leota F. v. U.S. Postal Serv., EEOC Appeal No. 2022002024 (May 2, 2022) (complainant timely filed a hearing request, which effectively transferred jurisdiction to the Commission, and the agency no longer had jurisdiction to issue a final decision); Kirkland v. U.S. Postal Serv., EEOC Request No. 0520120249 (May 9, 2014) (agency found to lack jurisdiction to issue its final decision when hearing request was pending). Accordingly, we VACATE the Agency’s final decisions and REMAND the complaints for processing, in accordance with the Order below. ORDER Within fifteen (15) calendar days of the date this decision is issued, the Agency shall submit to the EEOC’s Philadelphia Hearings Unit a renewed request for a hearing on Complainant’s behalf, the complete complaint files, and a copy of this appellate decision. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint files have been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall resume processing of Complainant’s three joined complaints. 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 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. 5 2022003107 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 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). 6 2022003107 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 November 28, 2022 Date