0120150281
02-23-2015
Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Commissary Agency), Agency.
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Appeal No. 0120150281
Agency No. DeCA-00161-2014
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated September 26, 2014, dismissing a formal 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
During the period at issue, Complainant worked as a Meat Cutter at an Agency Commissary in Fort Belvoir, Virginia.
On June 25, 2014, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On August 22, 2014, Complainant filed the instant formal complaint. Therein, Complainant alleged that he was subjected to harassment and a hostile work environment in reprisal for prior EEO activity when:
a. on September 20, 2012, he was issued a Letter of Reprimand;
b. on October 18, 2012, the Store Director wanted to take a picture of his cut hand;
c. on October 19, 2012, the Store Director started his own investigation into Complainant's accident;
d. on January 23, 2013, he was charged with fifteen minutes of leave for being six minutes late due to inclement weather;
e. on May 20, 2013, he was questioned by the Meat Manager as to his whereabouts when he went to use the restroom;
f. during May 2013, the Store Director denied his request to attend Meat Managers Training;
g. during July 2013, he received an annual performance rating of "Fully Successful" for PY 2013;
h. on August 7, 2013, the Store Director was watching him during his break time, the Store Director watched no other employee;
i. on September 12, 2013, his request for a meeting with the Meat Manager was denied;
j. on September 26, 2013, his request for a meeting with the Meat Manager was ignored;
k. on September 26, 2013, he was charged Absent Without Leave (AWOL) for fifteen minutes, by the Meat Manager;
l. on September 27, 2013, the Store Director instructed his Work Leader to watch him;
m. on October 1, 2013, the Meat Manager singled him out for speaking with a co-worker but never said anything to the co-worker;
n. during October 2013, the Meat Manager denied his request to cross-train at the Bolling Air Force Base Commissary;
o. on November 13, 2013, he was charged AWOL by the Meat Manager;
p. on December 10, 2013, he was charged with AWOL despite the fact that he showed up, but the base was closed;
q. on December 13, 2013, the Store Director requested from him documentation showing that he had picked up his daughter from school after he had been approved for leave;
r. on February 14, 2014, he was charged with two hours of annual leave despite the fact that the Post Commander issued a two-hour delay;
s. on February 20, 2014, the Store Director told him to move his car but told no one else;
t. on February 22, 2014, the Store Manager was watching him during his fifteen minute break and questioned him about sharing some hotdogs with his co-workers;
u. on March 13, 2014, a co-worker came in fifteen minutes late but she was not asked to fill out a leave slip or change her time sheet like he was;
v. on March 20, 2014, the Meat Manager accused him of leaving his work area for short periods of time;
w. on March 21, 2014, the Meat Manager accused him of leaving his work area;
x. on March 21, 2014, the Meat Manager accused him of leaving his work area for twenty-five minutes and taking extended breaks;
y. on April 2, 2014, the Meat Manager accused him of walking around doing nothing, when he was actually looking for rump roast;
z. on April 4, 2014, the Store Director asked the Meat Manager what time Complainant had come into work and when stated 6:00 am, he made the comment that Complainant should have cut ten or more boxes of meat;
aa. on April 7, 2014, he was issued a Letter of Warning;
bb. on April 10, 2014, the Store Director checked out his receipt for his lunch but failed to check anyone else's receipt;
cc. on April 18, 2014, the Store Director asked another employee how many boxes of meat Complainant had cut but did not inquire about anyone else;
dd. on May 2, 2014, he was preparing to go on break when the Store Director told him that it was not break time yet;
ee. on May 2, 2014, the Store Director was consistently watching him.
In its September 26, 2014 final decision, the Agency dismissed the complaint on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on June 25, 2014, which it found to be beyond the 45-day limitation period regarding all of the above listed matters.
The instant appeal followed.
ANALYSIS AND FINDINGS
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 personnel action, within forty-five (45) days of the effective date of the action. Failure to bring an alleged discriminatory matter to the attention of the EEO Counselor in a timely manner pursuant to regulation, and absent circumstances requiring extension, see 29 C.F.R. � 1614.105(a)(2) mandates dismissal of complaints for untimeliness. 29 C.F.R. � 1614.107(a)(2).
On appeal, Complainant argues that he had no actual or constructive knowledge of the limitation period for contacting an EEO Counselor. Complainant expressly argues that his first contact with the Complaints Manager "was on June 25, 2014. During that conversation [Complaints Manager] never notified me that my complaints should have been submitted within 45 days of the incident." 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. Department of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of Department of Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition, in Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993). The Commission stated that "the agency has the burden of providing evidence and/or proof to support its final decisions." See also Gens v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992).
In this case, we find that the Agency provided no documentation reflecting Complainant's actual or constructive knowledge of the forty-five day limitation period. We are therefore persuaded by Complainant's assertion that he had no knowledge of the limitation period until more than forty-five days after the most recent discriminatory event purportedly occurred.
The Agency's final decision dismissing the formal complaint on the grounds of untimely EEO Counselor contact is REVERSED. The formal complaint is REMANDED to the Agency 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 (M0610)
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 9-18 (November 9, 1999). 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 23, 2015
__________________
Date
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0120150281
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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