[Redacted], Wilburn M., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2023000330 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wilburn M.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2023000330 Agency No. 22-4523A-01382 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision (Dismissal) dated September 23, 2022, dismissing his complaint alleging unlawful employment discrimination in violation of a stature unspecified in the record. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Career Path Counselor, GS-11, at the Agency’s Puget Sound Naval Shipyard facility in Bremerton, Washington. On August 25, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on an unspecified basis when: 1. On or about June 16, 2022, an Agency official (job title not specified in the record) (“Agency Official 1”) misused her authority to elevate an unqualified employee (“Employee 2”) for the purpose of injuring Complainant’s prospects and improving the prospects for Employee 2. 2. Agency Official 1 engaged in a conflict of interest by writing an employee a letter 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. 2023000330 2 of attestation while being a major part of the hiring process for the position for which she wrote the letter of attestation. 3. Agency Official 1 used her authority to select a hiring panel that would favor a specific employee and assembled a hiring panel that did not include experts for the position being hired. 4. Agency Official 1 knowingly allowed Complainant’s interview to continue despite one of the panel members being absent the day of the interview. 5. Agency Official 1 did not provide Complainant with proper feedback after Complainant’s initial notification that he had not received the Career Path Counselor position. 6. Agency Official 1 notified others of the outcome of the interview before a proper review had been completed of the interview results. 7. Agency Official 1 targeted Complainant during a meeting, shut down his input, and created an uncomfortable public confrontation. 8. Agency Official 1 began treating Complainant and his input differently after Complainant received notification he had not been selected for the position. 9. Agency Official 1 quickly moved to have Complainant removed from the team as soon as possible. The Agency dismissed the claims for failure to state a claim on the grounds that Complainant failed to specify in his complaint a protected basis or bases motivating the allegations of discrimination. The instant appeal from Complainant followed. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.101, it is the policy of the U.S. Government to provide equal employment opportunity for all, and to prohibit discrimination in employment because of race, color, religion, sex, national origin, age, disability, or genetic information. While Complainant did not identify a basis for his allegations of discrimination on his complaint form, he now specifies on appeal that the basis should be sex and that Agency Official 1 and Employee 2 are both female. In view of the fact that Complainant has now specified a basis of alleged discrimination (sex) under Title VII, we find that the matter should be remanded to the Agency for additional processing. 2023000330 3 In reaching this conclusion, we note that Complainant is not changing the factual allegations originally raised in his complaint. He is only adding the basis for his allegations of discrimination. For many years, the Commission has broadly applied the decision in Sanchez v. Standard Brands, Inc., 431 F.2d 455, 465 (5th Cir. 1970). Under Sanchez, complainants are given liberal latitude to clarify the bases of alleged discrimination and to add bases of discrimination after filing their charges. The Sanchez court identified at least three reasons why a complainant may fail to identify a basis of discrimination in a complaint: (1) they may not be aware of an employer's motivation; (2) they may not fully comprehend the distinction between bases; or (3) they may be unschooled and unsophisticated in the use of forms. Applying Sanchez, the Commission has held that a complainant may amend his or her complaint to add or delete bases without changing the identity of the claim. See, e.g., Dragos v. U.S. Postal Service, EEOC Request No. 05940563 (Jan. 19, 1995). Here, we find that the instant case falls under the third Sanchez justification for allowing a post-filing amendment to add a basis. On appeal, Complainant explains that he asked a named individual, “if not selecting a box for an EEO basis would cause a dismissal of the case. [Named individual] gave me enough information to make me feel as though” the Agency would proceed with the processing of his complaint despite the lack of a specified basis or bases. We conclude that Complainant’s lack of knowledge and confusion about EEO complaint pleadings is adequate justification to allow him to now amend his complaint. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Dismissal and REMAND the claim for further processing in according 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. 2023000330 4 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. 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. 2023000330 5 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 (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. 2023000330 6 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 January 31, 2023 Date