Barry G.,1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jul 22, 2020

2020000279 (E.E.O.C. Jul. 22, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Barry G.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 2020000279 Agency No. ARWSMR19JUL02777 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 25, 2019, 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 Chief of Transportation Division, GS-2101-13, at the Agency’s Logistics Readiness Center facility in White Sands Missile Range, New Mexico. On September 17, 2019, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination and a hostile work environment on the bases of race (African-American) and reprisal by JT (Supervisor), MA (Deputy Commander), SN (Commander), and SP (Command Sergeant Major) when: a. On July 29, 2019, JT issued Complainant a Notice of Detail, detailing him to the Directorate of Plans, Transportation, Mobilization, and Security pending an AR 15-6 investigation; 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. 2020000279 2 b. Also, on July 29, 2019, JT had Complainant’s access account to his computer disabled and locks changed in the office Complainant occupied in the organization; c. On July 29, 2019, JT temporarily placed JL in Complainant’s position as the Transportation Division Chief; d. On July 28, 2019, SP and JT failed to contact Complainant to let him know there was going to be a sensing session at the LRC while Complainant was out on annual and sick leave, so Complainant was unable to attend; e. On June 10, 2019, during a meeting, JT provided Complainant a memorandum dated June 11, 2019, and in that memorandum JT made allegations to Complainant about the concerns he had about Complainant managing the Transportation Division based on information that he received from the personnel that work in the division; f. On June 4, 2019, JT sent Complainant an email chastising him because he did not address him (JT) properly by using the term “Sir” or “Mr. T..” in an email to him requesting Comp Time/Overtime. In that same email JT questio0ned Complainant’s integrity; g. On May 21, 2019, JT sent an email to Complainant that he had made the decision to put JL as the Acting Director of the Logistics Readiness Center; h. Also, on May 21, 2019, Complainant informed SN, the 407th FSB Commander by email of the toxic environment and abuse of power by JT in which SN failed to respond to Complainant; i. On April 24, 2019, JY created a threatening environment by influencing one of Complainant’s staff, JC, by coercing JC to write statements against Complainant; j. On April 23, 2019, JT sent Complainant an email accusing him of failing to follow instructions; k. On an unspecified date, JT has supported JC unswervingly and not supported his supervisor, KM and Complainant as the Division Chief causing a negative impact of fear of repercussions amongst other employees; and l. On an unspecified date, Complainant discovered that he had not been selected for the position of Plans and Operations Chief. The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2), due to the untimely filing of the formal complaint. The Agency also dismissed claims e-l for untimely EEO counselor contact. The instant appeal followed. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so. 2020000279 3 The record discloses that Complainant received the notice of right to file a formal complaint on August 27, 2019. Complainant requested corrections to the notice, which were made, and he received the revised notice on August 29, 2019. Although the notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, Complainant did not file his formal complaint until September 17, 2019, which is beyond the limitation period. On appeal, Complainant has not offered adequate justification to warrant an extension of the time limit for filing the complaint. Rather, Complainant states he was on annual leave from August 28 - September 3, 2019, and that when he saw the August 29, 2019 notice, he simply replied that he had received it, but did not read it until September 4, 2019. We find that Complainant’s excuse is insufficient to extend the time limits - he had ample time to timely file his complaint when he returned from vacation. Because we find the complaint was untimely filed, we need not address the alternate reason for dismissing claims e-l. Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. 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. 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. 2020000279 4 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 (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 July 22, 2020 Date