0120142067
10-29-2014
Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120142067
Agency No. 14-3598A-01050
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated April 9, 2014, dismissing a formal 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.
BACKGROUND
During the period at issue, Complainant worked as a Supervisory Human Resources Specialist at the Agency's Navy Supply Systems Command (NAVSUP), Human Resources Office in Mechanicsburg, Pennsylvania.
On March 21, 2014, Complainant filed the instant formal complaint. Therein, Complainant alleged that he was subjected to harassment and a hostile work environment on the bases of sex and in reprisal for prior EEO activity.
On April 9, 2014, the Agency issued a final decision. The Agency determined that the formal complaint was comprised of the following claims:
a. on March 10, 2014, Complainant was required to train the new Human Resources Officer in the performance of her duties;
b. on February 21, 2014, he was issued a Letter of Requirement and a Letter of Caution by [Captain];
c. on or about February 5, 2014, management failed to notify Complainant's customer base that he was detailed to another position and therefore not in a position to effectively manage his team;
d. on January 22, 2014, he was not selected for the position of Human Resources Officer, GS-0201-14;
e. on December 19, 2013, [Human Resources Director] directed select members of Complainant's team not to have contact with Complainant, after a staff member approached him with allegations of hostile work environment regard another employee;
f. on December 6, 2013, Complainant was interviewed for the Human Resources Officer position mentioned above, and an inappropriate question was asked. Further, Complainant alleged that no one identified him/herself as the EEO representative on the panel, despite that it is the Agency policy to have one;
g. on November 5, 2013, he was detailed from his position but not relieved of the responsibilities of his job, after a hostile work environment claim was filed against him by another employee;
h. on August 20, 2013, the recruitment for the position of Human Resources Officer was cancelled. Complainant alleged that although another person was told by [Human Resources Director] of the cancellation, he was never informed of this or of the re-announcement of the position; and
i. on unspecified dates, [Human Resources Director] gave contrary information to Complainant's subordinates and discussed Complainant with his subordinates.
The Agency dismissed claims a - i pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds that it was untimely filed. The Agency determined that Complainant's attorney and Complainant received the Notice of Right to File a Discrimination Complaint (hereinafter referred to as "Notice") on March 3 and 8, 2014, respectively, and that the Notice indicated that a formal complaint had to be filed within fifteen days of receipt of the Notice. However, the Agency found that Complainant waited until March 24, 2014, to file his formal complaint, which it found to be beyond the requisite fifteen days from the date of the receipt of the Notice.
The Agency also dismissed a matter that it identified as "claim 1(j)" pursuant to 29 C.F.R. � 1614.106(c) "which states that a claim 'must be sufficiently precise to...describe generally the actions or practices that form the basis of the complaint.' Without more information, this allegation cannot be appropriately investigated."
The instant appeal followed.
ANALYSIS AND FINDINGS
As a threshold matter, we find that the instant final decision contained two prominent errors which caused considerable confusion.
The first error is reflected in the Agency's apparent dismissal of a matter which it identifies as "claim 1(j)." Specifically, we note that in page 2 of the instant final decision, the Agency stated "also in accordance with reference (e), the instance identified as 1(j) is dismissed pursuant to 29 CFR 1614.106(c), which states that a claim 'must be sufficiently precise to...describe generally the actions or practices that form the basis of the complaint.' Without more information, this allegation cannot be appropriately investigated." After a careful review of the record, we note that there is (a) no reference (e) in page 1 of the instant final decision.1 Additionally, we note that there is no such claim identified as claim 1(j). As the Agency inexplicably made reference to a phantom reference (e), as well as a phantom claim 1(j), we will not accord any further attention to this matter.
Moving on to the dismissal of the formal complaint on the grounds that it was untimely filed, we find another error, calling into question the propriety of the Agency dismissal of the formal complaint on the grounds that it was untimely filed.
For instance, we note page one of the instant final decision, the Agency determined that Complainant's formal complaint was "postmarked" on March 21, 2014. We note, however, in page 2 of the final decision, the Agency determined that Complainant's formal complaint was "postmarked" March 24, 2014. Further, we note in its March 25, 2014 Notice of Acknowledgment of Receipt of Formal Complaint, the Agency acknowledged receipt of the formal complaint via Federal Express on March 24, 2014. The record contains a copy of a Federal Express printout indicating that the ship date of the formal complaint was March 21, 2014 via priority overnight.
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a written complaint with an appropriate agency official within fifteen (15) calendar days after the date of receipt of the notice of the right to file a formal complaint.
On appeal, argued that the Agency improperly dismissed his complaint for untimely filing. For instance, Complainant argued that prior to the February 26, 2014 Notice of Final Interview via telephone conference, he notified the EEO Specialist his desire to have an attorney part of the telephone conference. Complainant further stated that in response to the EEO Specialist's inquiry regarding the attorney's representation of Complainant, the attorney informed the EEO Specialist "that she was serving as counsel for [Complainant] for purposes of the telephone call, and had not yet been retained to represent him in his formal EEOC complaint."
Complainant stated that during the February 26, 2014 telephone conference, Complainant's attorney stated that Complainant had questioned "the date on which computation started for purposes of filing, as he was scheduled to take leave from February 27, 2014, to March 07, 2014, and would be out of state and unable to review the documentation...Specifically, [Complainant] was concerned that the time period would start tolling in the event and to the extent his counsel would receive the document before he...in response to [Complainant's] concerns, [EEO Specialist] assured [Complainant] that the time period for filing his complaint would begin from the date on which he, and not his counsel, received the NORTF [Notice of the Right to File a Formal Complaint]...immediately, [the attorney] questioned [EEO Specialist] as to the accuracy of that statement, and expressed her concern that the applicable time period would begin tolling upon her receipt of the NORTF letter...given [Complainant's] valid concerns regarding this issue, [the attorney] indicated that to the extent her receipt of the NORTF would commence any applicable filing period, she would withdraw her representation...[EEO Specialist] stated that counsel's withdrawal would not be necessary...[EEO Specialist] again stated that the applicable time period would begin tolling upon [Complainant's] receipt of the NORTF and not counsel's receipt of the NORTF...she indicated that she would provide a courtesy copy only of the NORTF to counsel, which would not trigger the deadline."
In response, the Agency stated that on February 24, 2014, Complainant sent an email to the EEO Specialist indicating that he had secured an attorney "along with a completed representation form delineating [attorney] as his sole representative. Nowhere was it specified that the attorney's representation was limited to any particular part of the process." The Agency stated that according to the EEO Specialist, she stated "at no time during the Final Interview did [attorney] make claim that she was serving as counsel for the sole purpose of the telephone call."
The Agency further stated the EEO Specialist had conversations with Complainant and his attorney on several occasions "concerning clarification of claims and statements regarding [Complainant's] complaint." Moreover, the Agency argued that Complainant's contentions that the EEO representative and Command EEO Officer's guidance was misleading or misinforming is an attempt to shift responsibility to the agency for the representative's failure to know and follow the regulations."
In the instant case, we note that there is some dispute concerning the nature of the attorney's representation of Complainant during pre-complaint counseling. We further note that there is some discrepancy in the record in the dates regarding Federal Express transmission of the formal complaint. Finally, we note that even assuming that a formal complaint was not timely filed, any delay would have been extremely close to the expiration of the fifteen-day limitation period. Given these circumstances, we determine that there is sufficient justification for any delay in the filing of the formal complaint.
The Agency final decision dismissing the formal complaint is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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 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 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 29, 2014
__________________
Date
1 We note that preceding the actual decision itself, the Agency identified various references. In this case, the final decision contains only three such references: (a) the formal complaint, (b) the Notice of Right to File a Formal Complaint; and (c) the pertinent regulations (29 C.F.R. Part 1614).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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