0120142862
05-29-2015
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal Nos. 0120142862, 0120151048
Agency Nos. ARAPG14MAY01777, ARAPG14NOV04317
DECISION
Complainant filed two timely appeals with this Commission from two separate final Agency decisions dated July 29, 2014 and December 16, 2014 dismissing his complaints. The Commission exercises its discretion and consolidates the two appeals. See 29 C.F.R. 1614.606
BACKGROUND
During the period at issue, Complainant worked as a Digital Systems Analyst at Fort Bragg in North Carolina. On July 16, 2014 and December 5, 2014, Complainant filed two formal complaints alleging that the Agency subjected him to discrimination in reprisal for prior protected EEO activity under the Age Discrimination in Employment Act of 1967.
Appeal No. 0120142862, Agency Case No. ARAPG14MAY01777 (hereinafter referred to as "Complaint 1")
On July 16, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to unlawful retaliation. In its final decision dated July 29, 2014, the Agency determined that Complainant's complaint was comprised of the following claim:
On April 23, 2014, [a named Agency official] issued [Complainant] a Notice of Termination of Term Appointment letter.
The Agency dismissed Complainant's complaint on the grounds his formal complaint was untimely filed. The Agency reasoned "[Complainant's] EEO Counselor sent [him] the DA2590 and Notice of Right to File twice on June 20, 2014. [Complainant's] formal complaint was received in the EEO Office on July 16, 2014-11 days passed [his] 15 day timeline."
The instant appeal followed. On appeal, Complainant asserts that the EEO Counselor called him on June 20, 2014, while Complainant was on a government mission "in a very remote location and no access to internet at the time, nor a working printer or the required forms." Complainant states that he could not open the attached file and informed the EEO Counselor that he would not be able to respond until he returned to the office. Complainant states once he returned to the office, he could still not open the attachment from his government computer. Complainant asserts that he received the Notice on July 11, 2014.
In response, the Agency requests that we affirm its final decision dismissing Complainant's complaint.
Appeal No. 0120151048, Agency Case No. ARAPG14NOV04317 (hereinafter referred to as "Complaint 2")
On December 5, 2014, Complainant filed a formal EEO complaint alleging that he was subjected to unlawful retaliation. In its final decision dated December 16, 2014, the Agency determined that Complainant's complaint was comprised of the following claim:
On [May 31, 2013], [a named Agency official] issued [Complainant] a bad midpoint evaluation for the rating period of August 2012-March 2013, even though [he] worked for [another named Agency official] during this time period.
The Agency dismissed Complainant's complaint for failure to state a claim reasoning that "a bad rating on a midpoint evaluation is not a term, condition, or privilege of employment for which there is a remedy. Further, it is not a final rating of employment for which the employee may appeal."
The instant appeal followed.
ANALYSIS AND FINDINGS
We find the Agency improperly dismissed Complaint 1 on the grounds the formal complaint was untimely filed. EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a written complaint with an appropriate agency official within fifteen (15) calendar days after the date of receipt of the notice of the right to file a formal complaint.
29 C.F.R. � 1614.107(a)(2) provides that the agency shall dismiss 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).
While Complainant asserts that the Notice was delivered to Complainant via email on June 20, 2014,1 the record does not clearly establish that Complainant received and was able to access the Notice on that day. Complainant asserts that he was unable to open the email attachment. Complainant further asserts he did not receive the Notice until July 11, 2014. In addition, the record contains a copy of the Notice. Complainant signed the Notice and indicated the date of receipt of the Notice as July 11, 2014. In addition, Complainant lists on his formal complaint that he received the Notice on July 11, 2014.
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." See Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request No 05920506 (Aug. 25, 1992). In addition, in Ericson v. Dep't of the Army, EEOC Request No. 05920623 (Jan. 14, 1993), the Commission stated that "the agency has the burden of providing evidence and/or proof to support its final decision. See also Gens v. Dep't of Defense, EEOC Request No. 05910837 (Jan. 31, 1992). Upon review of the instant matter, the Agency has not met its burden the Complainant received the Notice on June 20, 2014. Based on the foregoing, we find that the Agency improperly dismissed Complaint 1.
We find that the Agency improperly dismissed Complaint 2. To the extent the Agency is alleging that Complaint 2 should be dismissed as a proposed or preliminary action because it involves a mid-year rating, we disagree. Complainant is alleging that he received an unfavorable mid-year evaluation based on reprisal. 29 C.F.R. �1614.107(a)(5) provides, in part, that an agency shall dismiss a complaint that alleges a proposal to take a personnel action, or other preliminary step to taking a personnel action, is discriminatory. However, a revision to � 1614.107(a)(5) makes clear that this provision does not apply where, as in this case, it is alleged that a discriminatory proposed personnel action is made in retaliation for prior protected activity. 77 Fed. Reg. 43498 (July 25, 2012).
In addition, we find that the alleged incident sets forth an actionable claim. To state a viable claim of retaliation, complainant must allege that 1) he was subjected to an action which a reasonable employee would have found materially adverse, and 2) the action could dissuade a reasonable employee from engaging from making or supporting a charge of discrimination. Burlington Northern & Santa Fe Railroad Co. v. White, 548 U.S. 53, 68 (2006). We find the alleged incident is reasonably likely to deter Complainant or others from engaging in protected activity.
Accordingly, we REVERSE the Agency's dismissal of complaints 1 and 2 and we REMAND these matters to the Agency for further processing in accordance with the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims (complaints 1 and 2) 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
May 29, 2015
__________________
Date
1 We note that the record contains an email dated June 20, 2014 from Microsoft Outlook to the EEO Counselor indicating his email containing the Notice was delivered to Complainant's personal email address. However, we note this email does not indicate when Complainant opened the email or when he accessed the attached document (Notice).
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2
0120142862
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120142862, 0120151048