0120101383
07-27-2010
Wyatt B. Speckman, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (National Geospatial-Intelligence Agency), Agency.
Wyatt B. Speckman,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(National Geospatial-Intelligence Agency),
Agency.
Appeal No. 0120101383
Agency No. NGAW10P003
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
final decision dated January 6, 2010, 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.
Upon review, the Commission finds that Complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a).
BACKGROUND
On August 10, 20091, Complainant initiated EEO contact alleging
that the Agency discriminated against him on the basis of religion
(Christian-Baptist) when a diversity representative (S1) instructed
him to attend mandatory training about lesbian, gay, bisexual, and
transgender (LGBT) issues. Complainant alleged that "[t]hose having
sincerely held religious beliefs [opposing LGBT lifestyles] were not
provided the opportunity to opt out," were told to check their religious
beliefs at the door, and were referred to as homophobic. The training
was held on July 9, 2009 and Complainant added that S1 asked him to
write notes on the board during the presentation. Subsequently,
Complainant filed a formal EEO complaint reiterating the same.
The Agency dismissed Complainant's claim pursuant to 29 C.F.R. ��
1614.107(a)(1) & (a)(2) for failure to state a claim and untimely EEO
contact, respectively. Specifically, the Agency stated that Complainant
failed to allege an action that affected a term, condition or privilege
of employment or that rose to the level of a hostile work environment.
Further, the Agency stated that Complainant initiated EEO contact 120
days after the alleged discriminatory event. The instant appeal from
Complainant followed.
On appeal, complainant stated that he contacted the Office of Diversity
Management and Equal Employment Opportunity (ODE) with the intent to file
a complaint on August 10, 2009 and met with an EEO representative to
file on August 18, 2009. Complainant provided the contents of an email
to ODE dated August 10, 2009, in which he stated, "I would like to file
a complaint. Please let me know what my options are." Complainant stated
that the ODE Representative instructed him to try to resolve the matter
with his supervisor first.
ANALYSIS AND FINDINGS
As to the 29 C.F.R. � 1614.107(a)(1) dismissal, under Title VII,
employers are required to accommodate the religious practices of their
employees unless a requested accommodation is shown to impose an undue
hardship. 42 U.S.C. � 2000e(j); 29 C.F.R. � 1605.2(b)(1). The traditional
framework for establishing a prima facie case of discrimination based on
religious accommodation requires a complainant to demonstrate that: (1)
he has a bona fide religious belief, the practice of which conflicted
with his employment, (2) he informed the agency of this belief and
conflict, and (3) the agency nevertheless enforced its requirement
against Complainant. Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th
Cir. 1993); Turpen v. Missouri-Kansas-Texas R.R. Co., 736 F.2d 1022,
1026 (5th Cir. 1984).
Here, Complainant alleged that the Agency required him to attend a
presentation that conflicted with his religious beliefs. We find that
the claim-at-issue is denial of religious accommodation, and such denial
states a viable claim to be reviewed on the merits.
For the 29 C.F.R. � 1614.107(a)(2) dismissal; where there is an issue of
timeliness, "[a]n agency always bears the burden of obtaining sufficient
information to support a reasoned determination as to timeliness." Guy,
v. Dep't of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting
Williams v. Dep't of Defense, EEOC Request No. 05920506 (August 25,
1992)). In addition, in Ericson v. Dep't of the Army, EEOC Request
No. 05920623 (January 14, 1993), the Commission stated that "the agency
has the burden of providing evidence and/or proof to support its final
decisions." See also Gens v. Dep't of Defense, EEOC Request No. 05910837
(January 31, 1992).
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. The
Commission has adopted a "reasonable suspicion" standard (as opposed to a
"supportive facts" standard) to determine when the forty-five (45) day
limitation period is triggered. See Howard v. Dep't of the Navy, EEOC
Request No. 05970852 (February 11, 1999). Thus, the time limitation is
not triggered until a complainant reasonably suspects discrimination, but
before all the facts that support a charge of discrimination have become
apparent. McLouglin v. Dep't of the Treasury, EEOC Request No. 05A01093
(April 24, 2003).
After careful review of the record, we disagree with the Agency's
dismissal regarding timeliness. We find that the Agency failed to
show that Complainant initiated EEO contact in an untimely manner.
Complainant's email to ODE on August 10, 2009 satisfies EEOC Regulations
regarding EEO contact - Complainant contacted an agency official logically
connected with the EEO process and exhibited an intent to begin the
EEO process. See Allen v. United States Postal Service, EEO Request
No. 05950933 (July 8, 1996). Further, the Counselor's Report indicates
that Complainant initiated contact on August 10, 2009 and that date is
within the 45 day statutory time-frame.
Accordingly, we REVERSE the Agency's final decision dismissing
Complainant's complaint and REMAND the matter to the Agency for further
processing consistent 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. � 1614.108. 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 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
July 27, 2010
__________________
Date
1 We note that the final agency decision indicates that Complainant
initiated contact with the Agency Office of Diversity Management and Equal
Employment Opportunity on August 18, 2009 and requested a Counselor on
November 10, 2009. The EEO Counselor's Report indicates that Complainant
initiated contact on August 10, 2009.
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0120101383
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101383