[Redacted], Aron J., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Mar 28, 2022

Appeal No. 2020005418 (E.E.O.C. Mar. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Aron J.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2020005418 Hearing No. 430-2020-00061X Agency No. DON-17-62381-02280 DECISION On September 18, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), concerning his equal employment opportunity (EEO) complaint alleging 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. For the following reasons, we AFFIRM the Agency’s final action. BACKGROUND At the time of events giving rise to this complaint, Complainant worked for the Military Sealift Command (MSC) as a Civil Service Mariner (CIVMAR), Engine Utilityman, aboard the United States Naval Ship (USNS) Patuxent. On May 24, 2017, Complainant initiated EEO contact concerning his allegation that, on November 19, 2016, the Deputy for CIVMAR Manpower and Personnel retaliated against him by forwarding a letter to the Captain of the USNS Patuxent, requesting that he speak with Complainant regarding ongoing correspondence with various people at the MSC ashore offices. Complainant purportedly filed a formal EEO complaint on July 10, 2017, regarding this incident. 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. 2020005418 2 Because the Agency allegedly did not receive Complainant’s formal complaint, the Agency neither accepted nor investigated it. Approximately 29 months later, Complainant filed a request for a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). However, on April 28, 2020, the Agency filed a motion for a decision without a hearing on the grounds that Complainant failed to timely initiate EEO contact. Complainant subsequently filing an opposition to the Agency’s motion. In opposing the Agency’s motion, Complainant argued, in relevant part, that he did in fact file a formal EEO complaint. He also maintained that the Agency acted in bad faith. Over Complainant’s objections, on May 13, 2020, the AJ issued an “order granting Agency’s motion to dismiss.” Subsequently, the AJ assigned to the case issued an “Order Entering Judgment” in favor of the Agency on June 1, 2020. When the Agency failed to issue a final order within forty (40) days of receipt of the AJ’s decision, the AJ’s decision became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). This appeal followed. On appeal, Complainant asserts that he sent the Agency a settlement discussion form, but the Agency never responded to him.2 The Agency opposes Complainant’s appeal and requests that the Commission affirm the AJ’s decision to dismiss the complaint. 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 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. The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the 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 has become apparent. Here, the record reflects that Complainant alleged that on November 19, 2016, the Deputy for CIVMAR Manpower and Personnel retaliated against him by forwarding a letter to the Captain of the USNS Patuxent, requesting that he speak with Complainant regarding ongoing 2 Based on this failure, Complainant requests that the Commission specifically implement the terms of the proposed settlement agreement. We note that Complainant has not provided a copy of an executed settlement agreement. 2020005418 3 correspondence with various people at the MSC ashore offices. Complainant contacted the EEO Office on May 24, 2017. See Complaint File at 31-33. Though Complainant reasonably suspected that this incident was discriminatory in nature, he did not initiate EEO contact until approximately 186 days after the alleged incident, well outside of the applicable time limit. We note that Complainant has not contested the timeline nor provided any explanation for his failure to timely initiate EEO contact. Therefore, we AFFIRM the Agency’s final action implementing the AJ’s decision to dismiss the matter pursuant to 29 C.F.R. §1614.107(a)(2). STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 2020005418 4 Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (S0610) 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. 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 (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 March 28, 2022 Date