Joel M.,1 Complainant,v.Ryan D. McCarthy, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 4, 2019

2019001335 (E.E.O.C. Sep. 4, 2019)

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

Joel M.,1
Complainant,

v.

Ryan D. McCarthy,
Acting Secretary,
Department of the Army,
Agency.

Appeal No. 2019001335

Agency No. ARRIA18SEP03450

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency’s decision dated October 5, 2018, 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 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 a Materials Handler
Supervisor, WS-6907-06/05, at the Agency’s Joint Manufacturing and Technology Center in
Rock Island, Illinois.

On August 13, 2018, Complainant contacted the EEO Counselor alleging discrimination. On
September 24, 2018, Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination on the bases of race (Asian), disability, and age (45) when:

1. On July 23, 2017, Complainant was assigned GS employees as a Material Handler
Supervisor by the Director of Logistic Operations (Director). In this assignment
Complainant supervised the work of GS-11 employees.

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.
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2. Complainant has requested an accretion of his position to a GS-12 and his immediate
supervisor (Supervisor) and the Director have refused to upgrade his position.

3. Complainant also asserts that the failure to grade his position to a higher level is race
discrimination in that Caucasian employees are awarded upgrades when assigned
additional duties.

4. Complainant was discriminated against on the basis of his race when on May 23,
2018, he and a coworker were singled out for investigation of theft of government
property, when similarly situated non-disabled Caucasian supervisors were not
subjected to such investigation. Complainant was removed from his supervisory
position and has not been returned to his work duties, even after the proposal for
removal has been cancelled.

The Agency dismissed the complaint pursuant to 29 C.F.R. §1614.107(a)(2). The Agency noted
that Complainant alleged only two claims. The Agency combined Complainant’s claims 1 and 2
into a single claim of discrimination from when, from July 23, 2017, the Agency failed to
compensate Complainant despite the accretion of additional duties. The second claim, the
Agency identified as, when, on May 23, 2018, Complainant was subjected to investigation for
theft of government property. The Agency noted that Complainant had received “No Fear”
training and had been made aware of the time limits. Therefore, the Agency held that
Complainant’s contact on August 13, 2018, was well beyond the 45-day time limit and dismissed
the complaint as a whole.

CONTENTIONS ON APPEAL

Complainant appealed, asserting that, with respect to claim 1, he was not provided with a salary
increase for his additional duties from July 2017 to July 2018. Further, he argued that he
contacted the EEO Counselor in early July 2018 under a different name. Therefore, Complainant
asked that the Commission reverse the Agency’s final decision. The Agency did not submit a
statement or a brief in opposition to Complainant’s appeal.

ANALYSIS AND FINDINGS

As an initial matter, we find that the Agency failed to properly identify the claims alleged in the
instant matter. Complainant alleged two claims of discrimination:

A. Complainant alleged discrimination on the basis of race when, on July 23, 2017,
Complainant was assigned GS employees as a Material Handler Supervisor by the
Director of Logistic Operations (Director). In this assignment Complainant
supervised the work of GS-11 employees. Complainant has requested an accretion of
his position to a GS-12 and his immediate supervisor (Supervisor) and the Director
have refused to upgrade his position.
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B. Complainant also asserts that the failure to grade his position to a higher level is race
discrimination in that Caucasian employees are awarded upgrades when assigned
additional duties.

C. Complainant alleged discrimination based on his age, disability and race, when on
May 23, 2018, he was singled out for investigation of theft of government property,
when similarly situated non-disabled Caucasian supervisors were not subjected to
such investigation. On July 31, 2018, Complainant was issued a proposed removal
from his supervisory position. On August 30, 2018, the removal action was
cancelled. However, Complainant has not been returned to his work duties.

We shall review the Agency’s dismissal using the claims identified as claims A and B.

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 29
C.F.R. § 1614.105, § 1614.106 and § 1614.204(c), unless the Agency extends the time limits in
accordance with 29 C.F.R. § 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. EEOC Regulation 29 C.F.R. § 1614.105(a)(2) allows the Agency or the Commission to
extend the time limit if Complainant can establish that Complainant was not aware of the time
limit, that Complainant did not know and reasonably should not have known that the
discriminatory matter or personnel action occurred, that despite due diligence Complainant was
prevented by circumstances beyond his control from contacting the EEO Counselor within the
time limit, or for other reasons considered sufficient by the Agency or Commission.

As to claim B, Complainant contacted the EEO Counselor on August 13, 2018. The series of
events in claim B began on May 23, 2018. However, following the investigation, Complainant
was issued a proposed notice of removal on July 31, 2018, which was later cancelled on August
31, 2018. Since the cancellation of the removal action, Complainant asserted that he has not
been returned to his position. We find that Complainant’s contact was within the appropriate
timeframe with respect to claim B.

In Claim A, Complainant asserted that he had been provided additional duties beginning in July
2017. However, he has not been compensated for the additional assignment of duties. He argues
that such a claim constitutes a continuing violation as he has not received an increase salary for
the additional work he has performed. However, the basis of his claim is the additional duties
assigned to him in staring July 23, 2017. He was aware of the additional duties at that time and
the fact that he would not be receiving additional pay. Therefore, we find that Complainant was
aware of the alleged discrimination in July 2017 and contacted the EEO Counselor in August
2018, well beyond the 45 day time limit. As such, we affirm the Agency’s dismissal of claim A.
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The Agency is reminded that under 29 C.F.R. § 1614.403(e) it must submit the complaint file to
the Commission within 30 days of initial notification that the complainant has filed an appeal. In
this case, the agency did not submit the file until July 19, 2019, more than five months after the
Commission’s notification of the appeal.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the dismissal of claim A. However, we REVERSE
the Agency’s final decision with respect to claim B and REMAND claim B for further
processing in accordance with the ORDER below.

ORDER
Given the Agency’s lengthy delay in submitting the complaint file to the Commission, we find
that the Agency must process the instant complaint expeditiously.
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 was issued. The Agency shall issue to
Complainant a copy of the investigative file and also shall notify Complainant of the appropriate
rights within ninety (90) calendar days of the date this decision was issued, 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.
As provided in the statement entitled “Implementation of the Commission’s Decision,” the
Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of
acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the
investigative file and notice of rights, and 3) either a copy of Complainant’s request for a
hearing, a copy of Complainant’s request for a FAD, or a statement from the Agency that it did
not receive a response from Complainant by the end of the election period.
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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 C.F.R. § 1614.503(f) for enforcement by that agency.
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.
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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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. 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.
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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 4, 2019
Date