Jermaine H.,1 Complainant,v.Ryan D. McCarthy, Acting Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionSep 5, 20192019001382 (E.E.O.C. Sep. 5, 2019) Copy Citation 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. 2019001382 2 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. 2019001382 3 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. 2019001382 4 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. 2019001382 5 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. 2019001382 6 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 Copy with citationCopy as parenthetical citation