0120141133
10-22-2015
Preston B.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Preston B.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120141133
Agency No. 13-40080-02326
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 31, 2013, 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 Facilities Manager at the Agency's Base in Indian Head, Maryland. The record indicated that Complainant had been assigned the duties of the Acting Supervisory Branch Head as early as December 1, 2012. Complainant was provided with the assignment without any additional pay. Subsequently, on April 17, 2013, Complainant learned that another employee would be acting Branch Head but he would be receiving additional pay for the temporary 120 day detail. Complainant raised the issue of his pay for the temporary assignment with management from December 1, 2012 to April 23, 2013. Management informed Complainant on May 3, 2013, that it would not retroactively provide Complainant with pay for the temporary assignment.
On June 14, 2013, Complainant contacted the EEO Counselor alleging discrimination. When the matter could not be resolved informally, Complainant was provided with a Notice of Right to File his formal complaint. On November 8, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of race (Black) when, Complainant was notified to perform the duties of the vacant GS-13 position effective 29 March 2013 without additional pay while another employee was temporarily promoted into the same position with additional pay.
The Agency dismissed the complaint pursuant to 29 C.F.R. �1614.107(a)(2). The Agency noted that Complainant was aware of the other employee receiving additional pay for the assignment on March 29, 2013, but failed to contact the EEO Counselor until June 2013, well beyond the 45 day time limit. As such, the Agency dismissed the complaint.
Complainant appealed asserting that management met with him following the information regarding the other employee's assignment. He indicated that management considered providing him with the additional pay for the time he served in the temporary assignment. It was not until May 3, 2013, that he was affirmativly informed that he would not receive retroactive pay for his temporary assignment into the supervisory position. As such, his contact on June 14, 2013, was within the 45 day window. Therefore, Complainant asked that the Commission reverse the Agency's final decision. The Agency provided a copy of the complaint record but failed to specifically respond to Complainant's statement on 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 �1614.105, �1614.106 and �1614.204(c), unless the agency extends the time limits in accordance with �1614.604(c). 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 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 her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
The Commission has previously held that an agency may not dismiss a complaint based on a complainant's untimeliness, if that untimeliness is caused by the Agency's action in misleading or misinforming Complainant. See Wilkinson v. U.S. Postal Serv., EEOC Request No. 05950205 (March 26, 1996). See also Elijah v. Dep't of the Army, EEOC Request No. 05950632 (March 29, 1996) (if agency officials misled complainant into waiting to initiate EEO counseling, agency must extend time limit for contacting EEO Counselor). In addition, an employer's affirmatively misleading statements that a grievance will be resolved in employee's favor can establish an equitable estoppel that effectively tolls limitations period for the filing of an EEO complaint. Currier v. Radio Free Europe/Radio Liberty, Inc., 159 F.3d 1363 (1998); Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518 (11th Cir. 1992). Under those circumstances, an employee understandably would be reluctant to file a complainant with the EEOC for fear he would jeopardize his chances to gain relief voluntarily.
Upon review of the record, Complainant was aware of the alleged discrimination when he was informed that another employee was to take over his temporary assignment with additional pay. However, Complainant had engaged in conversations with management in which they considered providing him with pay for the time he was the acting supervisor from December 1, 2012 to April 23, 2013. It was only after he was definitively denied the retroactive pay in May 2013 that Complainant contacted the EEO Counselor within 45 calendar days. We note that the Agency did not respond to Complainant's assertions, on appeal, that he initially contacted EEO in June 2013 and was provided with a definitive decision regarding retroactive pay. Where, as here, 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 (Jan. 4, 1994). We find that the Agency has not met that burden. As such, due to the circumstances of the instant case, we find that Agency's dismissal was not appropriate.
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 (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 (M0815)
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 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, 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 (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. 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
October 22, 2015
__________________
Date
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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