0120122342
10-24-2012
Carl C. Morris, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.
Carl C. Morris,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120122342
Hearing No. 570-2010-01119X
Agency No. DOT-2010-23160-RITA-02
DECISION
On May 3, 2012, Complainant filed an appeal from the Agency's April 4, 2012, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final order.
ISSUE PRESENTED
The issue presented is whether the Agency properly dismissed claim 3 on the basis that it was initiated by untimely EEO counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-14 Mathematical Statistician in the Agency's Research and Innovative Technology Administration (RITA), Bureau of Transportation Statistics (BTS), in Washington, D.C.
On February 17, 2010, Complainant filed an EEO complaint in which he alleged that the Agency discriminated against him on the basis of age (born 1955) and in reprisal for prior protected EEO activity when:
1. On or about January 4, 2010, Complainant learned that his Full Performance Level (FPL) had been changed;
2. On or about January 12, 2010, the Agency denied Complainant's request to move to another cubicle; and
3. The Agency subjected Complainant to a hostile work environment when: a) on August 25, 2007, Complainant was sent on an involuntary six-month detail; b) on November 14, 2007, Complainant received a mediocre performance rating; c) on March 3, 2008 Complainant was assigned another involuntary detail; and d) on June 1, 2008, Complainant was not selected for a GS-15 position in the BTS Office of Transportation Analysis.
In correspondence dated May 25, 2010, the Agency dismissed claim 3 on the basis that this matter was initiated by untimely EEO Counselor contact. The Agency accepted claims 1 and 2 for investigation. At the conclusion of the investigation of claims 1 and 2, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing on August 19, 2010.
The AJ's Decision
On August 24 2011, the Agency submitted a motion for summary judgment to the AJ, to which Complainant responded in opposition on September 7, 2011. On March 26, 2012, the AJ issued a decision in which he granted the Agency's motion and found that Complainant failed to prove that he was subjected to unlawful discrimination or harassment. Specifically, the AJ concluded that Complainant failed to establish that he was singled out for disparate treatment because seven other employees had their FPL reduced temporarily in the same manner that Complainant had his FPL reduced. The AJ noted that management stated that eventually all affected employees had their FPLs restored to their previous levels. The AJ further concluded that Complainant failed to show that the cubicle issue was an adverse action. The AJ noted that Complainant's supervisor stated that there was competition for office space, and the supervisor did not have exclusive control over office space. The AJ further noted that the office space Complainant desired was held by another employee who was on detail, but the Agency moved Complainant to a new cubicle on June 7, 2010. The AJ found that Complainant failed to provide any evidence from which it could be reasonably concluded that the Agency's explanations were pretext for unlawful discrimination. The Agency subsequently issued a final order fully adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency improperly dismissed claim 3 on the basis that it was initiated by untimely EEO Counselor contact. Complainant argues that claim 3 is part of his overall claim that he was subjected to an ongoing hostile work environment, and therefore, the Agency improperly fragmented his hostile work environment claim. Complainant also contends that he was unaware of applicable EEO procedures until less than 45 days before he initiated EEO Counselor contact. Additionally, Complainant contends that he has experienced compensation discrimination in each biweekly paycheck he has received since the Agency failed to select him for a GS-15 position in the BTS Office. Complainant maintains that under the Lilly Ledbetter Fair Pay Act of 2009, he can initiate timely EEO counselor within 45 days of each paycheck he receives. The Agency requests that we affirm its final order.
ANALYSIS AND FINDINGS
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.
EEOC regulations further provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
In this case, the actions alleged in claim 3 occurred between August 25, 2007, and June 1, 2008. Complainant did not initiate EEO counselor contact for these matters until January 11, 2010, well beyond the 45-day time limit. The Agency dismissed claim 3 on the basis that it was initiated by untimely EEO Counselor contact. However, in his formal complaint, Complainant stated that he had never before filed or participated in an EEO complaint and was unaware of EEO filing deadlines. Additionally, on June 13, 2011, Complainant submitted a document to the AJ in which he challenged the Agency's dismissal of claim 3 because he was unaware of EEO time limits during the relevant time period.
On appeal, the Agency asserts that Complainant had constructive notice of the 45-day time limit because it sent an e-mail message to Agency employees that informed them of the 45-day time limit, and Complainant was an Agency employee at the time the e-mail was sent. The Agency submitted a copy of a February 2006 e-mail message entitled "Essential Civil Rights Information." Agency Appellate Exhibit A. The attachment to this message contained civil rights and EEO information, including notice of the 45-day time limit. However, although the message was generally directed to addressees on the "List-RITA-HQ-FED" list, it did not specifically state that it was sent to or received by Complainant. Moreover, the record does not contain a confirmation receipt that reflects that Complainant received or opened this particular e-mail. As such, this e-mail cannot constitute constructive notice to Complainant of the 45-day time limit. We further note that the Agency has not indicated that constructive knowledge can be imputed to Complainant by showing that Complainant received EEO training or that EEO posters containing the time limits are posted in Complainant's work area.
The Commission has held that were 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." Guv v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992)). In addition, in Ericson v. Department 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 Gens v. Dep't of Defense, EEOC Request No. 05910837 (Jan. 31, 1992). After a review of the record, we find that the Agency has not satisfied its burden of establishing that Complainant knew or should have known of the applicable time limits. Consequently, we find that the Agency improperly dismissed claim 3 on the basis that it was initiated by untimely EEO Counselor contact.
Complainant contends that his EEO complaint consists of a single interrelated claim that he was subjected to ongoing harassment, which we find to be a fair reading of his complaint. Therefore, in order to avoid piecemeal adjudication of Complainant's complaint, claims 1 and 2 should be reviewed with claim 3. Consequently, we VACATE the Agency's final order with respect to claims 1 and 2 and REMAND these claims to the Agency for further processing along with claim 3.
CONCLUSION
Based on a thorough review of the record and contentions on appeal, including those not specifically addressed herein, the Commission REVERSES the Agency's dismissal of claim 3 and VACATES the Agency's final order with respect to claims 1 and 2. The Commission REMANDS Complainant's complaint in its entirety to the Agency for further processing consistent with this decision and the ORDER set forth below.
ORDER
The Agency is ORDERED to reinstate claim 3 and resume processing of it from the point processing ceased, in accordance with 29 C.F.R. � 1614.108. The Agency shall investigate claim 3 in relation to claims 1 and 2 and as a component of Complainant's overall harassment claim. The Agency shall acknowledge to Complainant that it has received the remanded complaint 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 on Complainant's complaint 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 24, 2012
Date
2
0120122342
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013