Jermaine H.,1 Complainant,v.Ryan D. McCarthy, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 5, 2019

2019001382 (E.E.O.C. Sep. 5, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Jermaine H.,1
Complainant,

v.

Ryan D. McCarthy,
Acting Secretary,
Department of the Army,
Agency.

Appeal No. 2019001382

Agency No. ARHQOSA18JUL02891

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s decision dated November 6, 2018, 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 Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Deputy Chief of
Cybersecurity Plans and Training at the Agency’s STEM Program in Fort Belvoir, Virginia.
Complainant indicated that he applied to the Agency’s Senior Service College (SSC) on May 17,
2017. He received notification on February 27, 2018, that he was not selected for the SSC.
Complainant later learned of the Selectee’s identity and that the Selectee was less senior to
Complainant. He believed the Selectee was chosen over him due to Complainant’s protected
bases.

On August 29, 2018, Complainant contacted the EEO Counselor alleging discrimination. The
matter was not resolved informally.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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On October 18, 2018, Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination on the bases of race (African-American), disability, and in reprisal for
prior protected EEO activity arising under Title VII when he was not selected to attend the
Agency’s SSC.

The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency noted
that Complainant was made aware of the decision in February 2018. However, he did not
contact the EEO Counselor until August 2018, several months after he was notified that he was
not selected for participation in the SSC. The Agency stated that applicants are provided with
information on how and when selections are made public. Therefore, the Agency determined
that Complainant learned months prior to contacting the EEO Counselor of his non-selection and
the selection of the Selectee. As such, the Agency dismissed the complaint as a whole.

CONTENTIONS ON APPEAL

Complainant appealed, asserting that he was not made aware of the identity of the Selectee at the
time he was informed that he was not selected for the SSC. When he learned who was selected
for the position, he argued that then he became aware that his protected bases were the reason for
the non-selection. In addition, Complainant asserted that he contacted the EEO Counselor within
45 calendar days.

The Agency failed to respond to the instant appeal.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states that the Agency shall dismiss a complaint or
a portion of a complaint that fails to comply with the applicable time limits contained in 29
C.F.R. § 1614.105, § 1614.106 and § 1614.204(c), unless the Agency extends the time limits in
accordance with 29 C.F.R. § 1614.604(c).

EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides that an aggrieved person must initiate
contact with an EEO Counselor within 45 days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within 45 days of the effective date of the
action. EEOC Regulation 29 C.F.R. § 1614.105(a)(2) allows the Agency or the Commission to
extend the time limit if Complainant can establish that Complainant was not aware of the time
limit, that Complainant did not know and reasonably should not have known that the
discriminatory matter or personnel action occurred, that despite due diligence Complainant was
prevented by circumstances beyond his control from contacting the EEO Counselor within the
time limit, or for other reasons considered sufficient by the Agency or Commission.

Complainant asserted that he was not aware of the discriminatory matter until he learned the
identity of the Selectee. At that time, he learned that an individual outside of his protected bases
with less seniority was selected for the SSC. As such, he argued that he contacted the Agency
within the appropriate time limit.
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The Agency asserted in its final decision that Complainant should have been aware of the
Selectee’s identity as the SSC selections were allegedly announced in digital form. Therefore,
the Agency asserted that Complainant should have been aware of the Selectee’s identity well
before when Complainant alleged he learned this information. We note that the Agency made
these assertions. However, the Agency did not provide any evidence in the record to support
these assertions. The Agency did not include a copy of the digital announcement. The EEO
Counselor’s Report includes in narrative form that the Human Resources Specialist indicated that
the results were made public. We note that such a statement was not provided under oath and is
not considered evidence. Thus, the Agency has failed to substantiate the bases for its final
decision. See Marshall v. Dep’t of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991).
Accordingly, we find that the Agency’s dismissal of the complaint at hand was not appropriate.

The Agency is reminded that under 29 C.F.R. § 1614.403(e) it must submit the complaint file to
the Commission within 30 days of initial notification that the complainant has filed an appeal. In
this case, the agency did not submit the file until July 16, 2019, more than four months after the
Commission’s notification of the appeal.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we REVERSE the Agency’s final decision and REMAND the
matter for further processing in accordance with the ORDER below.

ORDER
Given the Agency’s lengthy delay in submitting the complaint file to the Commission, we find
that the Agency must process the instant complaint expeditiously.
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 was issued. The Agency shall issue to
Complainant a copy of the investigative file and also shall notify Complainant of the appropriate
rights within ninety (90) calendar days of the date this decision was issued, 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.
As provided in the statement entitled “Implementation of the Commission’s Decision,” the
Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of
acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the
investigative file and notice of rights, and 3) either a copy of Complainant’s request for a
hearing, a copy of Complainant’s request for a FAD, or a statement from the Agency that it did
not receive a response from Complainant by the end of the election period.
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IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition.
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See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must
be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal
Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests.
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Such requests do not alter the time limits for filing a civil action (please read the paragraph titled
Complainant’s Right to File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 5, 2019
Date