0120121503
07-12-2012
Erasmo Hernandez, Jr., Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Erasmo Hernandez, Jr.,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120121503
Agency No. 12031803667
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated January 9, 2012, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Desk Manager at the Agency's Marine Air Ground Task Force Information Technology Support Center in Hawaii.
On November 28, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of national origin (Mexican) when: (a) On March 22,2011, management sent a reorganization e-mail to senior staff which excluded him; (b) On March 30, 2011, his supervisor issued him a notice of "Change of Duties" temporarily detailing him from duties as Service Desk Manager to unallocated duties pending the outcome of an administrative investigation and that he was instructed to continue working in Building 505 until [receipt of] further instructions issued by management; (c) On March 31, 2011, he contacted the Agency's Human Resources Specialist (HRS) and was purportedly given bad advice and a misrepresentation of EEO law; (d) On April 11, 2011, he requested a hardcopy explaining why his security clearance had been suspended. A copy of the Suspension of Access to Classified Information for Cause dated April 11, 2011, and Local Suspension of Security Access dated February 2, 2011, were provided; (e) On May 4, 2011, management stated that he would have to pay for future testing/certifications upfront and would be reimbursed after passing the testing/certifications; (f) On June 16, 2011, during a conversation, his supervisor conveyed that he did not trust him; both he and his supervisor then agreed to a telework program for Complainant's current duties; (g) On August 11, 2011, he obtained a copy of the Command Investigation, dated August 10, 2011, of which the goal of Marine Corps Base Hawaii is to have him removed from employment; and in reprisal for having filed a formal EEO complaint in this matter; and h) On November 28, 2011, his access to the shared drive was removed.
In its final decision, the Agency dismissed claims (a) - (f) as untimely for Complainant's failure to make contact with an EEO counselor within 45 days of each alleged event. Claims (a), (c) - (f) and (h) were dismissed separately for failure to state a claim. Claim (g) was dismissed for alleging a proposed personnel action.
The instant appeal followed. Complainant asserts that he is a victim of invidious discrimination and he was misguided by the HRS. He further asserts that claims (a) - (f) should not be dismissed as untimely "due to the fact that the acts were all committed by the same responsible management official."
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. 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 (Feb. 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.
EEOC Regulations 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.
The record discloses that the alleged discriminatory events detailed in claims (a) - (f) occurred from March 22, 2011 to June 16, 2011, but Complainant did not initiate contact with an EEO Counselor until August 25, 2011, which is beyond the forty-five (45) day limitation period. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. The record reflects that Complainant received Supervisory EEO training detailing the EEO complaint process and its requisite time frames. Complainant does not contend that he was dissuaded or prevented from seeking timely EEO Counselor contact. Therefore, claims (a) - (f) were properly dismissed by the Agency for untimely EEO Counselor contact.
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides, in part, that the agency shall dismiss a complaint that alleges that a proposal to take a personnel action, or other preliminary step to taking a personnel action, is discriminatory. Concerning claim (g), although the Agency has subjected Complainant to investigation, the record does not show that he has received any notice of removal. Thus, the Agency appropriately dismissed claim (g) for alleging a proposed personnel action.
Regarding claim (h), Complainant has established a viable reprisal claim, as Complainant is alleging that his access to the automated shared drive was removed. The Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Id. This claim involves an Agency action that is clearly adverse and would dissuade a reasonable employee from making or supporting a charge of discrimination.1 The Agency's dismissal of claim (h) was improper and is remanded for investigation.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED in part and REVERSED in part. Claim (h) is remanded to the Agency for further processing in accordance with the following Order.
ORDER (E0610)
The Agency is ordered to process the remanded claim (h) in accordance with 29 C.F.R. � 1614.108 et seq. 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. If you file a request to reconsider and also file a civil action, 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 12, 2012
__________________
Date
1 The Agency argues in its appeal brief that Complainant actually lost access to the shared drive in February 2011, and therefore claim (h) is untimely. The Agency's further argues that claim (h) could not constitute reprisal because the action contained therein preceded Complainant's filing of his formal complaint (prior EEO activity). We note that the Agency's final decision did not discount Complainant's contended date of November 28, 2011. We further note that the merits of this claim are to be appropriately addressed when the Agency investigates this claim in accordance with the Commission's order.
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0120121503
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120121503