0120170890
03-09-2017
Vern R.,1 Complainant, v. Sean J. Stackley, Acting Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Vern R.,1
Complainant,
v.
Sean J. Stackley,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 0120170890
Agency No. 164215802898
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 6, 2016, dismissing his complaint alleging 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 Welder at the Agency's Norfolk Naval Shipyard in Norfolk, Virginia.
On November 10, 2016, Complainant filed a formal complaint alleging he was discriminated against on the basis of his religion (Islam) when: (1) on February 18, 2016, the Deputy Shipyard Production Superintendent sent him home and placed him in a non-pay status until he shaved his beard, and (2) on or around February 18, 2016, the same Superintendent denied his request for reassignment into a position that did not require him to shave in order to use a respirator.
In his formal EEO complaint, Complainant stated that it was against his religion for him to shave his beard and provided documentation to that effect from his religious leader. Complainant stated that he asked to be placed somewhere else in the shipyard where he would not be required to shave and the request was denied. Complainant asserted that there was no attempt to accommodate his religious beliefs. Further, Complainant states that he was not given the opportunity to see if he could wear a respirator with his beard, and he later found that there were "forced air" respirators that could accommodate a beard.
According to the EEO counselor's report:
[The Superintendent] stated that [Complainant] was given a job assignment. He was required to shave his beard for the job assignment. He was respirator qualified before he was given the assignment so he chose not to shave after having shaved to get qualified. He learned that [Complainant] found his religion after he got hired. He was informed that he would be required to wear a respirator when he was hired. [Complainant] knew shop 26 required respirator qualifications.
[The Superintendent] stated that [Complainant] was placed in a non-pay status until he shaved. [He] did not consider accommodating [Complainant] because all of Shop 26 required respirator qualifications for welders.
The EEO counselor also noted that Complainant had not returned to work as of the date of he filed his formal complaint in November 2016. The counselor also indicated a "Pre-Action" (pre-disciplinary action) was initiated against Complainant on June 1, 2016.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO counselor contact. The instant appeal followed.
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 record discloses that Complainant was placed off-work beginning on February 18, 2016, but Complainant did not initiate contact with an EEO counselor until July 26, 2016, more than 45 days later. However, we note that at the time Complainant sought EEO counseling, he still had not returned to work and potential disciplinary action was pending.
Based on the unique facts of this case, the Commission determines that it is appropriate to reverse the Agency's dismissal and remand the complaint for further processing. 29 C.F.R. � 1614.604(c) provides that the time limitations provided for in the EEO complaint processing regulations are subject to waiver, estoppel and equitable tolling. Under this authority, we find that this is an appropriate case to excuse any delay in Complainant initiating contact with an EEO counselor. In reaching this decision, we have considered that the complaint at issue concerns an alleged ongoing failure to even consider providing a religious accommodation, rather than an incident that occurred on a single day.
Accordingly, the Agency's dismissal is REVERSED and the complaint is REMANDED to the Agency for further processing in accordance with the following Order.
ORDER (E1016)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.108 et seq. 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 one hundred fifty (150) 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.
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 (M0416)
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. The requests 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 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
March 9, 2017
__________________
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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