Ivan V.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense (Defense Logistics Agency (DLA)), Agency.

Equal Employment Opportunity Commission

Sep 20, 2019

2019002732 (E.E.O.C. Sep. 20, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Ivan V.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of Defense
(Defense Logistics Agency (DLA)),
Agency.

Appeal No. 2019002732
Agency No. DLAN-19-0016

DECISION

On April 11, 2019, Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final Agency decision (FAD) dated March 8, 2019,2
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 Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

At the time of events giving rise to this equal employment opportunity (EEO) complaint,
Complainant was employed by the Agency as a Business Process Analyst, GS-0301-13 at the DLA
Distribution facility in New Cumberland, Pennsylvania.

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 The FAD in the record is dated February 26, 2019, and captioned with Agency No. DLAC-19-
0016. The Agency used UPS to deliver the FAD to Complainant, with a scheduled delivery date
of March 12, 2019. On appeal, Complainant included the FAD he received, which was the same
as the February 26, 2019 FAD, except it is dated March 8, 2019, and captioned with Agency No.
DLAN-19-0016. In opposition to Complainant’s appeal, the Agency identifies the instant case as
DLAN-19-0016. We presume the FAD in the record was never sent to Complainant, and was later
revised to correct the Agency number.
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On October 8, 2018, Complainant initiated EEO counseling via email regarding his complaint.
During EEO counseling, which took place via email, Complainant alleged that he was subjected
to harassment, a hostile work environment, and discrimination based on his race (African-
American) and reprisal for prior EEO activity when he was mistreated by an identified manager at
a July 2018 meeting at DLA Headquarters in Ft. Belvoir, Virginia, and again at an August 23,
2018 meeting at the DLA Distribution Headquarters in New Cumberland, Pennsylvania. The EEO
office sought more detail from Complainant so his claim could be appropriately processed, but he
did not further clarify his claim. Instead, by email on November 4, 2018, Complainant replied,
“I’ve been out sick, and I’ve had difficulty with more than basic functioning” and by email on
November 5, 2018, wrote “I’m really depressed right now and don’t feel well enough” to complete
an intake form that solicited more information.

Thereafter, the Agency mailed Complainant his notice of right to file an EEO complaint, which he
exercised via email on November 23, 2018. In his brief one paragraph EEO complaint,
Complainant repeated the claim he raised with the EEO counselor, without further elaboration.

By letter dated January 24, 2019, which was scheduled via UPS for delivery to Complainant on
January 28, 2019, the Agency’s EEO office requested he clarify his EEO complaint, with
instructions so it could appropriately process his complaint. The Agency warned Complainant that
if he did not provide the requested information within 15 days from receipt of the letter, his EEO
complaint may be dismissed under 29 CFR § 1614.107(a)(7).

After getting no response from Complainant, the Agency issued its FAD dismissing Complainant’s
EEO complaint under 29 CFR § 1614.107(a)(7). The instant appeal followed.

On appeal, Complainant contends that he did not clarify his EEO complaint in response to the
Agency’s requests that he do so because he was medically incapacitated. He explains that he has
been suffering with post-traumatic stress disorder (PTSD), depression, a very bad case of facial
shingles which swelled his face, bad headaches, and dizziness, and this has mostly kept him out of
work. In support thereof, he submits medical documentation. This includes a Family Medical
Leave Act (FMLA) form completed by his health care provider on October 6, 2018, representing
Complainant has symptoms of depression and anxiety, episodes of sadness and hopelessness, and
difficulties with excessive sleeping, concentrating, and maintaining clear thought patterns. The
health care provider estimated that Complainant could work 4 – 8 hours a day, 1 – 2 days a week,
from September 1, 2018 – February 1, 2019, and he would have flare ups once per week with each
episode being 24 – 48 hours. Complainant submits a note by a health care advisor dated March 13,
2019, that advised that because Complainant was being treated for chronic sinusitis and shingles
with complications, he is excused from work from February 11, 2019 – March 18, 2019, and that
he has been incapacitated due to these issues.

On appeal, Complainant clarifies his EEO complaint. He writes that at the meeting in July 2018,
when he was passing out his first line supervisor’s handouts, the identified manager angrily and
loudly in a rapid fire manner while derisively laughing questioned him with comments such as
“What is this?”, “Who gave you authority to do this?”, “Do you have enough copies for everyone?”
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and “Did you email me a copy?” Complainant writes that at the August 23, 2018 meeting, which
was large, he responded to a question the identified manager threw out to the group, and she reacted
by saying “she needed a real answer…”, and after he emailed the information to one of the
manager’s subordinates, who apparently at the meeting forwarded it to the manager, the latter
slammed her laptop closed and said “this is exactly what I said I don’t want” or something close
to that.

In opposition to the appeal, the Agency argues the Complainant’s medical documentation is
insufficient, and he did not ask the EEO office for an extension.

ANALYSIS AND FINDINGS

EEOC Regulation 29 CFR § 1614.107(a)(7) states that an agency may dismiss a complaint where
it has provided the complainant with a written request to provide relevant information or otherwise
proceed with the complaint, and the complainant fails to respond to the request within 15 days of
its receipt or the complainant's response does not address the agency's request, provided that the
request included a notice of the proposed dismissal. The regulation also provides that instead of
dismissing for failure to cooperate, the complaint may be adjudicated if sufficient information for
that purpose is available.

The claim Complainant raised with the EEO counselor and in his complaint was too generalized
to allow the Agency to adequately process his complaint. Accordingly, the Agency properly
utilized 29 CFR § 1614.107(a)(7).

EEOC Regulation 29 CFR § 1614.604(c) provides that all time periods in EEOC Regulation Part
1614 are subject to waiver, estoppel, and equitable tolling. We find that Complainant has shown
the 15 day time limit should be equitably tolled. Complainant has severe depression, which
manifests at times in his having difficulty maintaining clear thought patterns. While his medical
documentation on this is insufficient to determine how his depression was manifesting toward the
end of the 15 day time limit, the relevant period, this, combined with Complainant being mostly
out of work and having a bad case of facial shingles with complications during the relevant time
period is sufficient to show, more likely than not, that Complainant was too incapacitated to
participate in the EEO process then.

Because Complainant’s EEO complaint was too generalized to allow the Agency to adequately
process his complaint, on remand it will have an opportunity to define the EEO complaint and
determine whether it should be accepted for investigation.

The FAD is REVERSED.

ORDER
The Agency is ordered to process the remanded claims, as appropriate, in accordance with 29
C.F.R. Part 1614. Within 45 calendar days of the date of this decision, the Agency’s EEO function
shall define the claims in Complainant’s EEO complaint and either issue a letter to him accepting
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his EEO complaint in whole or part, or a FAD dismissing his entire complaint. As provided in the
statement entitled "Implementation of the Commission's Decision,” the Agency must submit a
copy of which action it took.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency.

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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.
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
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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

September 20, 2019
Date