EEOC Appeal No. 0120151089
10-14-2015
Octavio C. v. Dep't of the Army
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Octavio C.,1
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120151089
Agency No. ARSHAFTER14NOV04313
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 13, 2015, 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 Supervisory Sports Specialist at the Agency's Schofield Barracks in Hawaii.
On December 30, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Korean) and sex (male).
In its final decision dated December 30, 2015, the Agency determined that the formal complaint was comprised of the following claim:
On July 31 2014, [Complainant was] provided a Notice of Decision to Proposed Suspension for abusive or offensive conduct, gestures, or similar conduct.
The Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact. The Agency reasoned that Complainant initiated EEO contact on November 5, 2014, outside of the applicable time limit. In addition, the Agency dismissed the formal complaint on the alternate grounds that Complainant previously raised this matter in a grievance. Specifically, the Agency stated that on August 11, 2014, Complainant had submitted a third step Administrative grievance on this issue.
The instant appeal followed. On appeal, Complainant asserts that he initially spoke to a named EEO Officer in August 2014 to file an EEO complaint. However, Complainant asserts that he was told by the EEO Officer to wait until to a decision was rendered on his administrative grievance and then Complainant could go directly to the formal EEO process rather than the informal process.
In response, the Agency requests that we affirm its final decision dismissing Complainant's complaint. The Agency, however, does not respond to Complainant's assertion that he was provided with incorrect information from a named EEO Officer in August 2014.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.301(a) states that when a person is employed by an agency subject to 5 U.S.C. � 7121(d) and is covered by a collective bargaining agreement that permits claims of discrimination to be raised in a negotiated grievance procedure, a person wishing to file a complaint or grievance on a matter of alleged employment discrimination must elect to raise the matter under either part 1614 or the negotiated grievance procedure, but not both. An aggrieved employee who files a grievance with an agency whose negotiated agreement permits the acceptance of grievances which allege discrimination may not thereafter file a complaint on the same matter under this part 1614 irrespective of whether the agency has informed the individual of the need to elect or whether the grievance has raised an issue of discrimination.
The Agency improperly dismissed the formal complaint on the grounds that Complainant previously raised this matter in a grievance. Complainant raised this matter in an administrative grievance but not though a negotiated grievance procedure as set forth by the Commission's regulations. EEOC Management Directive (MD)-110, Chapter 4, III (C) (rev. Aug. 2015), provides, in pertinent part, that "[t]here is nothing that prevents an employee from using an agency's administrative process, as opposed to a negotiated grievance process, and the EEO complaint process."
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
The Agency improperly dismissed the formal complaint on the grounds of untimely EEO Counselor contact. The July 31, 2014 Decision on Proposed Suspension lists August 4-August 17, 2014 as the effective dates of the suspension. Thus, Complainant's 45-day period to initiate EEO contact began on August 4, 2014. Complainant, on appeal, asserts that he contacted a named EEO Officer in August 2014, and that the EEO Officer told him to wait to pursue the EEO process until after a decision on his administrative grievance.
We further note that the record contains an "Information Inquiry form" reflecting that Complainant spoke to an EEO Officer on July 21, 2014 regarding his proposed suspension. Therein, it provides that Complainant was advised that he had options in the event he was suspended, an administrative grievance or EEO forum, but that he could not choose both. This form further provides that Complainant stated that he would contact the EEO Office again to make a complaint. We note that based on the Information Inquiry Form dated July 21, 2014, complainant appears to have initially been given misinformation from EEO regarding his options (that he had to choose either an administrative grievance or the EEO forum). EEOC Management Directive (MD)-110, Chapter 4, III (C) (rev. Aug. 2015), provides, in pertinent part, that "[t]here is nothing that prevents an employee from using an agency's administrative process, as opposed to a negotiated grievance process, and the EEO complaint process." In addition, the Agency does not address Complainant's assertion, on appeal that he contacted this EEO Officer in August 2014, to file an EEO complaint and was told to wait until a determination had been made on his administrative grievance. Based on these circumstances, we find that the Agency improperly dismissed Complainant's complaint for untimely EEO Counselor contact.
We REVERSE the Agency's final decision dismissing the formal complaint and we REMAND this matter 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 (M0815)
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 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, 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 (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 Complainants 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
October 14, 2015
__________________
Date
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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