[Redacted], Clarine L., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2023000392 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Clarine L.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2023000392 Agency No. DON 22-66262-00898 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated October 4, 2022, dismissing her complaint alleging 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Housekeeper for the Navy Gateway Inns & Suites, at the Agency’s Truman Annex in Key West, Florida. According to Complainant, on November 8, 2021, she and other Haitian Housekeepers asked management for a pay increase. They were told to clock out and go home. Two days later, Complainant contacted Human Resources, who told her they would look into the matter and to go home until called. On November 15, 2021, Human Resources called Complainant and instructed her to return to work the next day. Complainant did so and continued to work until December 6, 2021, when she met with the General Manager. She asserts that, despite the General Manager’s awareness of her language limitations, he denied her repeated requests for a translator during the meeting. She was given a letter of proposed removal and sent home. Complainant stated that on January 26, 2023, Human Resources called and said she was terminated. 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. 2023000392 2 Believing that the Agency’s actions were discriminatory, Complainant contacted an EEO Counselor on March 30, 2022. Informal efforts to resolve Complainant’s concerns were unsuccessful. Subsequently, on July 9, 2022, Complainant filed a formal complaint on the bases of her race (African American), national origin (Haitian), and color (Black). The Agency framed the claims as follows: a) On or around January 2018 to November 2021, you were regularly given additional duties that were rejected by Hispanic and Caucasian housekeepers. b) On November 8, 2021, you requested a small raise due to [the] high cost of living in Key West and was told by the Assistant General Manager, “We cannot do anything about your pay, if you don’t like it then you can go home.” c) On December 6, 2021, you were called into a meeting with the Assistant General Manager and instructed to sign a Notice of Proposed Removal for Cause. d) On December 6, 2021, you requested a translator in order to understand the Notice of Proposed Removal for Cause and was told by the Assistant General Manager that it was not necessary and wrote “Refuse to Sign” on the form. e) On January 26, 2022, you were terminated. The Agency dismissed the complaint for untimely EEO counselor contact, pursuant to 29 C.F.R § 1614.107(a)(2). The Agency reasoned that the allegedly discriminatory events occurred more than forty-five days prior to Complainant’s contact with an EEO Counselor and she had completed web-based “DON EEO Training” on January 21, 2021, thereby imputing her with constructive knowledge of the time limit. Additionally, the Agency stated that, on January 26, 2022, Complainant was informed by phone that the General Manager issued a decision to terminate her. The termination letter itself, noted the Agency, included information regarding the EEO process and time limit for initiating contact. Lastly, the Agency stated that Complainant suspected, or should have suspected, discrimination at the time of her termination, noting that she had contacted two Human Resource offices. Complainant filed the instant appeal. Her attorney argues that Complainant’s language is Haitian Creole, not English, and “her need for translation from English to Creole is documented.” She was provided with translation when interviewed by the EEO counselor but was denied one when she was disciplined on December 6, 2021. As for her attendance at EEO training cited in the Agency’s decision, she states that even assuming she did take the training, which she does not recall, she would not have understood the training because it was presented in English. ANALYSIS AND FINDINGS 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 2023000392 3 (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. EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. In order to commence the running of the forty-five (45) day limitations period for requesting EEO counseling, the complainant must have either actual or constructive knowledge of the time limit See Kamal v. Dept. of Treasury, EEOC Appeal No. 01A03133 (April 18, 2002) citing York v. Dep't. of Veterans Affairs, EEOC Request No. 05940575 (Nov. 2, 1994). It is the Commission's policy that constructive knowledge will be imputed to an employee when an employer has fulfilled its obligations under EEOC regulations for publicizing the time limits for contacting an EEO Counselor. See Yashuk v. United States Postal Service, EEOC Request No. 05890382 (June 2, 1989). In its decision, the Agency imputed Complainant with constructive knowledge of the time limit based on an EEO course she took on January 21, 2021. In support, the complaint file contains a six-page document listing approximately 100 courses purportedly taken by Complainant. This extensive course list includes: Anti-terrorism Awareness Training, Sexual Assault Prevention and Response, Counterintelligence Awareness and Reporting, Fair Labor Standards Act, Workplace Violence Prevention, Cyber Awareness, Suicide Awareness Training, and EEO Training. While the Agency decision stated it was a web-based course, according to this document, the courses were all “Manager Provided.” The record also contains slides from “EEO for Non-Supervisors”, which informs participants about the forty-five-day time limit. However, given the broad range of courses (including Cyber Awareness and Counterintellgence Awareness) purportedly given to Complainant, a Housekeeper, by her Manager, as well as Complainant’s well-established language limitations, we do not find that the instant record clearly establishes Complainant’s constructive knowledge. The Counselor’s Report reflects that one of the Housekeeping Leads, fluent in Haitian, translated for Complainant and the other housekeepers during the staff meeting regarding pay, as well as in follow-up conversations between Complainant and the Housekeeping Manager regarding her return to work. According to the Counselor’s notes, despite being at work that day, the Housekeeping Lead was not included in the December 6, 2021 meeting where Complainant was issued her proposed removal. The Housekeeping Lead noted that he did not understand why he was not asked to translate since management had always asked him to in the past. Further, we note that the proposed notice did not include information regarding the EEO process and time limits. In its decision, the Agency also maintains that Complainant had knowledge of the time limit because this information was included in the termination letter itself. However, the instant 2023000392 4 record indicates that Complainant was informed over the phone, by Human Resources, of her termination. It is not clear when, or if, Complainant was provided with a hard copy of the letter. 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). Based on the specific circumstances before us, we do not find that the Agency has met its burden. See also Beckmyer, Cole, Ferrer, Gowen, Lopez, Navales, Paco, Payongayong, Sanchez, and Tabion v. Dep’t of the Navy, EEOC Appeal Nos. 0120073167, 0120073161, 0120073157, 0120073156, 0120073155, 0120073154, 0120073152, 0120073151, 0120073149, 0120073147, 0120073148 (Sept 26, 2007) (Agency dismissal of complaints, by group of housekeepers with “limited ability to comprehend English as Tagalog is their first language”, for untimely counselor contact reversed due to lack of evidence of EEO posters/constructive knowledge). CONCLUSION The Agency’s decision dismissing the complaint is REVERSED and the matter is REMANDED for further processing in accordance with this decision and the Order below. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. 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 one hundred fifty (150) 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 the 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. 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 2023000392 5 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 (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 2023000392 6 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 2023000392 7 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 January 31, 2023 Date