0520130036
03-15-2013
Larry J. Gray, Sr., Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Larry J. Gray, Sr.,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Request No. 0520130036
Appeal No. 0120122243
Agency No. 114008003930
DENIAL
The Agency timely requested reconsideration of the decision in Larry J. Gray, Sr. v. Department of the Navy, EEOC Appeal No. 0120122243 (September 7, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
Complainant claimed that the Agency subjected him to discrimination on the bases of race, color, disability, age, and in reprisal for prior protected activity when: 1. on June 1, 2011, the Agency did not select him for two vacancies for the position of Supervisory Boiler Plant Operator, WS-5402-13, under Certificate Number NW1-WS5402-13-K1983848-IN-AL-13; and 2. the Agency subjected Complainant to a hostile work environment comprising of the following five events: a. on June 1, 2011, the Agency did not select Complainant for two vacancies, as alleged in Claim 1; b. Complainant was never given the opportunity for advancement because his record never acknowledged that he took part in, and graduated from, an Agency leadership development program; c. Complainant was denied a government cell phone; d. Complainant was denied a government work vehicle; e. Complainant was denied a computer that would allow the use of the Agency intranet (NMCI); and f. Complainant was not given at least three (3) within grade increases (WIGIs). Regarding his hostile work environment allegation, the only documented date is a denial of a within grade increase on June 1, 2009.
The Agency dismissed the complaint on the grounds that: (1). the formal complaint was untimely filed; (2) Complainant's EEO Counselor contact was untimely; and (3) Complainant failed to timely respond to written requests to provide relevant information.
The Commission found that the Agency improperly dismissed the formal complaint. Specifically, with regard to the untimely formal complaint argument, the Commission found that the Agency failed to show that Complainant's attorney received the Right to File a Formal Complaint that was sent by the Agency via fax. The Commission also rejected the Agency's dismissal of the complaint on the grounds that it was untimely raised before an EEO Counselor. The previous decision noted that Complainant raised two claims. His non-selection on June 1, 2011, was articulated both as a disparate treatment claim and, as part of a hostile work environment claim. The previous decision found that Claim 1 was clearly raised within the 45 day contact period. As Claim 1 was timely raised, the remaining claims, considered as part of a hostile work environment were also deemed timely. Regarding the Agency's third grounds for dismissal, the Commission found that Complainant correctly argued that 29 C.F.R. � 107(a)(7) required the Agency to notify him of the potential that his claim could be dismissed if he did not respond to requests for clarification. At no time did the Agency inform Complainant that his claims could be dismissed if he did not respond. Accordingly, the Commission reversed the Agency's final decision and remanded the matter to the Agency for further processing.
CONTENTIONS ON REQUEST FOR RECONSIDRATION
The Agency argues that the decision does not address the Agency's dismissal of a portion of Complainant's hostile work environment allegations for untimeliness. The Agency maintains that Complainant's hostile work environment claim should be dismissed as the incidents cited by Complainant are discreet acts and Complainant failed to show that they were somehow related. The Agency argues that all acts must be part of the same unlawful practice. Here, the Agency maintains that the acts are discreet incidents as Complainant did not adequately tie the untimely allegations of his hostile work environment claim to his timely raised non-selection allegation. The Agency argues that National Railroad Passenger v. Morgan, 536 U.S. 101 (2002), should control in this matter. Further, the Agency asserts that Complainant does not allege that the same management officials were responsible for each of his allegations. Lastly, the Agency maintains that Complainant gave no indication that each allegation occurred more than once.
In response, Complainant explains that he initiated contact with the EEO office on July 8, 2011. At that time, he stated that the non-selection was to be considered both as an individual claim and as part of a continuing hostile work environment claim. Complainant maintains that all of the related harassing incidents that he listed could reasonably diminish his opportunities for advancement by making him appear less qualified for advancement or with a less favorable documented record of achievement, and all could be part of a pattern of reprisal to "hold him back"
ANALYSIS AND FINDINGS
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to deny the request. A "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17. A reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. The Commission finds that the Agency is simply reiterating arguments made on appeal. We find that the previous decision correctly addressed the timeliness of Complainant's harassment claim finding that it was timely raised because Claim 1 was clearly within the 45 day contact period and as Claim 1 was timely raised, the remaining claims, considered as part of a hostile work environment, were also deemed as timely raised. We further find that these matters are sufficiently related as required by Morgan.1 Accordingly, the decision in EEOC Appeal No. 0120122243 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER
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 dale 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
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-l6(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.
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
____3/15/13______________
Date
1 We note that, in Morgan, the Supreme Court found that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period, i.e., Claim 1 in this case. The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. The Court defined such "discrete discriminatory acts" to include acts such as termination, failure to promote, denial of transfer, or refusal to hire, acts that constitute separate actionable unlawful employment practices. Id. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id. To the extent that certain incidents comprising Complainant's hostile work environment claim are found to be discrete acts, these matters can still be used as background evidence.
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0520130036
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520130036