0120150236
10-27-2015
Broderick D.,1 Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Broderick D.,1
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120150236
Agency No. ARPOM14MAY01676
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 27, 2014, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Assistant Professor at the Agency's Training and Doctrine Command in Monterey, California.
On April 3, 2014, 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 a Formal Complaint. On June 20, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of national origin (Iranian), age (over 40) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when: "[o]n or about July 2012 and continuing, Complainant was denied overtime assignments by way of staffing the study hall after normal classroom hours. When Complainant notified the next level supervisor of the disparity, [the Supervisor] began to alienate Complainant and ultimately retaliated against him by threatening to reduce his merit points regardless of his performance."
On June 21, 2014, the Agency submitted a request for clarification to Complainant via email. Specifically, the Agency wanted the names and dates when overtime was assigned to other individuals and not Complainant. Complainant's attorney (Attorney) responded stating that he hoped to get the names during discovery. The Attorney provided two names of individuals. In response, the Agency sent Complainant a letter dated June 27, 2014, stating that the Attorney's response required further clarification. The Agency indicated that the complaint at hand alleged discrimination based on age, national origin, and reprisal when the Supervisor denied Complainant overtime from July 2012 and continuing by way of staffing the study hall after normal classroom hours and when on July 31, 2012, Complainant notified the Second line Supervisor of the disparity, Complainant was retaliated against on March 28, 2014, when he was threatened with a reduction in his merit points regardless of his performance. The Agency warned that if Complainant failed to provide additional dates of overtime denied, the matter could be dismissed pursuant to 29 C.F.R. � 1614.107(a)(7) for failure to provide relevant information.
On the same day, the Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact and 29 C.F.R. � 1614.107(a)(7) for failure to respond or proceed in a timely manner. The Agency held that Complainant alleged that he was subjected to discrimination in July 2012, but failed to contact the EEO Counselor within 45 calendar days. The Agency also noted that it made attempts to define the claim, however, the Attorney failed to provide the specific information sought by the Agency. As such, the Agency dismissed the complaint as a whole.
Complainant appealed. The Attorney argued that the anti-retaliation provisions of employment discrimination statutes seek to prevent and employer from interfering with an employee's efforts to secure or advance enforcement of the statutes. Here, Complainant alleged a claim of retaliation on the part of the Supervisor and the issue of overtime was the catalyst for the retaliation. The Agency requested that the Commission affirm its dismissal.
ANALYSIS AND FINDINGS
As an initial matter, we find that the Agency failed to properly identify the claim raised in the formal complaint. Complainant clearly stated on his formal complaint that he was subjected to discrimination on the bases of national origin, age, and in reprisal for complaining about overtime disparity in July 2012 when, the Supervisor alienated Complainant and threatening to reduce his merit points regardless of his performance. The EEO Counselor's report indicated that the threat occurred on March 28, 2014. We find that Complainant provided the information regarding overtime as background evidence to support his claim of unlawful retaliation. Therefore, we shall review the Agency's dismissal of the complaint based on this claim of discrimination.
The Agency dismissed the compliant pursuant to 29 C.F.R. � 1614.107(a)(7) for failure to respond or proceed in a timely manner. The Commission has held that an Agency should not dismiss a complaint when it has sufficient information upon which to base adjudication. See Ross v. U.S. Postal Serv., EEOC Request No. 05900693 (Aug. 17, 1990); Brinson v. U.S. Postal Serv.,, EEOC Request No. 05900193 (Apr. 12, 1990). It is only in cases where the Complainant has engaged in delay or contumacious conduct and the record is insufficient to permit adjudication that the Commission has allowed a complaint to be dismissed for failure to cooperate. See Card v. U.S. Postal Serv., EEOC Request No. 05970095 (Apr. 23, 1998); Kroten v. U.S. Postal Serv., EEOC Request No. 05940451 (Dec. 22, 1994).
The record contains no persuasive evidence that Complainant or the Attorney engaged in delay or contumacious conduct in regard to the processing of the instant complaint. The Attorney tried to respond to the Agency's request. However, clearly, the issue here was that the Agency focused on the issue of overtime when Complainant's complaint clearly alleged a claim of discrimination after he informed management of the disparity in overtime which resulted in the threat on March 28, 2014. Therefore, we conclude that the dismissal of the complaint pursuant to 29 C.F.R. � 1614.107(a)(7) was not appropriate.
The Agency also dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2). 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) 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. Here, Complainant alleged discrimination when he was subjected to unlawful retaliation on March 28, 2014, when he was threatened with fewer merit points. Complainant contacted the EEO Counselor on April 3, 2014, well within the 45 day time limit. Therefore, we find that the Agency's dismissal of the complaint pursuant to 29 C.F.R. � 1614.107(a)(2) 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 27, 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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120150236
2
0120150236