0120142243
10-31-2014
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120142243
Agency No. ARIMCOMHQ13DEC0401
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 10, 2014, dismissing his complaint of 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 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 Supervisory Security Specialist at the Agency's Directorate of Emergency Services, U.S. Army Garrison (USAG) facility in West Point, New York.
On March 19, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to a hostile work environment and discrimination on the bases of race (African-American), color (Black), age (53), and reprisal for prior protected EEO activity under Title VII, when:
1. on November 12, 2013, Complainant was excluded from a key essential personnel meeting with the USAG West Point Commander with regard to West Point Academy physical security issues;
2. on December 26, 2013, Complainant became aware by email from the Personnel Security Investigation Center of Excellence that his background security investigation had expired and claims "management had something to do with him not being informed in a timely manner;"
3. on January 9, 2014, Complainant became aware that his immediate supervisor requested the Installation Internal Review Directorate to conduct an audit on Complainant's Physical Security section;" and
4. on unspecified dates during the period April 15, 2011 to 2014, Complainant's supervisory duties were reduced from being a supervisor of 90 employees to a staff of two; informed that he "was not considered mission essential personnel" and was subjected to a furlough.
The pertinent record shows that Complainant is an older African-American man. Complainant has prior EEO activity, which is known to management. He reports to the Director of Emergency Services (Supervisor), (Caucasian, age not specified). His second level supervisor is the Colonel (Commander) (Caucasian, age not specified). Both are named as responsible management officials in this matter. The EEO Counselor's report also states that Agency documents revealed that Complainant's duty position is identified as an "Emergency Essential key position."
According to the EEO counseling report, Complainant alleged that on November 12, 2013, a meeting on physical security was held at the USAG with employees throughout the installation. Complainant was excluded. Complainant claims that others (all Caucasians) of lower rank were invited to participate in the meeting on physical security.
On December 2, 2013, Complainant contacted an EEO Counselor. The EEO Counselor's Report indicates that Complainant claims that "since management officials became aware of him filing a Federal law suit against the Department of the Army, the DASG force has been removed from [Complainant's] supervision and his supervisory duties have been reduced from supervising over ninety government employees to just two employees."
On April 10, 2014, the Agency issued a final decision dismissing the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Agency reasoned that there was no evidence to show that Complainant was subjected to any adverse action or denied any entitlement in relation to a term, condition or privilege of employment when his supervisor requested an audit and did not include him at a meeting with the Commander pertinent to Complainant's physical security section. The Agency concluded that the alleged harassment was not sufficiently severe or pervasive to state a claim.
Next, the Agency dismissed for untimely EEO contact because the Agency maintains that Complainant was knowledgeable about the EEO process and failed to make EEO contact within 45 days of the claimed incidents that occurred in 2011, as alleged in claim 4.
This appeal followed.
ANALYSIS AND FINDINGS
An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, 1614.106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
In this case, a fair reading of the complaint in conjunction with the related EEO counseling report shows that Complainant has alleged that, after he filed a lawsuit against the Agency, his supervisor reduced Complainant's supervisory authority and staff, initiated an audit of Complainant's section, and told Complainant that he did not consider him to be in a mission critical position. Complainant has also alleged that management harassed him by excluding him from a significant meeting and placing his security clearance at risk. He further alleges that in these matters he was treated differently than others similarly situated who were younger, Caucasian and did not have prior EEO activity. This is sufficient to state a claim of age, color, race and/or reprisal discrimination. The Agency bases its dismissal decision on its assertion that Complainant was excluded from the meeting, subjected to an audit and reduction of staff for administrative and streamlining reasons. In using this rationale, we find that the Agency has addressed the merits of Complainant's claim without a proper investigation as required by the regulations. The Agency's articulated reasons for the disputed actions are irrelevant to the procedural issue of whether Complainant has stated a justiciable claim under Title VII and the ADEA. See Osborne v. Department of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United States Postal Service, EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642 (August 15, 1991).
The Agency also dismissed the complaint for untimely EEO counseling. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity 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.
In this case, Complainant is alleging that he has been subjected to an ongoing pattern of discriminatory and retaliatory harassment that has taken many forms including gradually reducing his supervisory responsibilities and staff, not allowing him to attend significant meetings, auditing his section and placing his security clearance at risk. The Supreme Court has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (June 10, 2002). In this case, Complainant's December 2, 2013 EEO counselor contact was timely made from some of the events he proffers as examples of the alleged ongoing harassment/hostile work environment. For these reasons, we find that the Agency failed to meet its burden of establishing that Complainant's December 2, 2013 contact was untimely made with regard to these alleged claims from April 15, 2011 to January 9, 2014.
CONCLUSION
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint. We hereby REMAND the complaint to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108et 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 becomes final. 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 becomes final, 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.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tends 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 31, 2014
__________________
Date
2
0120142243
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120142243