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

Equal Employment Opportunity Commission

Feb 28, 2023

Appeal No. 2023000745 (E.E.O.C. Feb. 28, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kevin B.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2023000745 Agency No. DON 22-63394-01210 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated November 2, 2022, dismissing his 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., 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 During the period at issue, Complainant worked as an Electronics Technician at the Agency’s facility in Port Hueneme, California. On October 3, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Hispanic), national origin (Peru), disability, age (52), and in reprisal for prior protected EEO activity. In its November 2, 2022 final decision the Agency determined that Complainant’s complaint was comprised of the following claim: Complainant was subjected to harassment/hostile work environment comprised of the following incidents: 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 2023000745 a. On or around June 14, 2022, [Complainant’s supervisor] coded [his] timecard as Absent Without Leave (AWOL) for eight hour on June 13, 2022 and eight hours on June 14, 2022, after [he] had provided proof [his] phone was lost. b. On or around April 22, 2022 [Complainant’s supervisor] coded [his] timecard as AWOL for three hours on April 13, 2022 and four hours on April 14, 2022, when he experienced network connectivity issues; c. For more than a year, [Complainant’s supervisor] has not given [him] the same opportunity as other electronic technicians in [his] branch by restricting [his] training, experience, and advancement. [He was] not given work to commensurate with [his] level of skills, and experience. [Complainant’s supervisor’s] method of “quiet firing” [him] in hopes [he would] become dissatisfied and leave [his] employment. d. For more than a year, [Complainant’s] employer has failed to provide [him] with an effective training program likely to lead to success and certification. He is not being provided with the appropriate training, mentoring, and on-the-job shadowing. e. On October 1, 2022, [he was] to be integrated into Branch N34, [he was] not transferred. The Agency dismissed Complainant’s hostile work environment claim, comprising incidents (a)- (e), for failure to state a claim. The Agency reasoned that these incidents were not sufficiently severe or pervasive to constitute actionable harassment. The Agency further found that for incident (b), Complainant was not coded as AWOL in April 2022. The Agency also dismissed incidents (c) and (d). The Agency reasoned that the alleged incidents were raised in a prior EEO complaint, Agency Case No. 22-63394-00052. The instant appeal followed. On appeal, Complainant, through his attorney, requests that we reverse the Agency’s final decision dismissing his complaint. Complainant’s attorney sets forth that the Agency improperly dismissed incidents (c) and (d) for being raised in a prior EEO complaint. Complainant’s attorney sets forth that the time period in the instant complaint is different than the time period at issue in the prior complaint. Complainant’s attorney further asserts that Complainant has set forth an actionable claim of harassment. Complainant’s attorney states that Complainant has been threatened with AWOL and received AWOL on another occasion, and denied the same opportunities as other electronic technicians with respect to work assignments and training. In response, the Agency requests that we affirm its final decision dismissing Complainant’s complaint. The Agency reiterates the reasoning set forth in its final decision. 3 2023000745 In addition, for the first time on appeal, the Agency asserts that alleged incidents (c)-(e) were not raised with an EEO Counselor and are not like or related to the claims raised with an EEO Counselor, claims (a)-(b). ANALYSIS AND FINDINGS Dismissal of Claims (c)-(d) EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides for the dismissal of complaints that state the same claim as a claim that has already been decided by the agency or the Equal Employment Opportunity Commission. The Agency dismissed claims (c)-(d) for being raised by Complainant in a prior EEO complaint, Agency Case No. 22-63394-00052. The record contains the formal complaint and pre- complaint paperwork for Complainant’s prior EEO complaint, filed on December 27, 2021. The formal complaint alleges some similar issues as incidents (c) and (d) of the instant complaint. For example, Complainant in the prior complaint alleged that he was not provided with the same opportunities and assignments as other technicians. On January 26, 2022, the Agency issued a final decision on the prior complaint and dismissed that complaint on procedural grounds. Some of the issues in the prior complaint and the instant complaint are similar. We note, however, that the time period is not completely the same. Complainant filed the prior complaint in December 2021, and the Agency issued a final decision on that matter on January 26, 2022. The instant complaint alleges various incidents in 2022. Complainant, in the instant complaint, alleges for incidents (c) and (d) that his training, mentoring, and assignments have been restricted for over a year when compared to the other technician. The matters which occurred prior to January 26, 2022, the date of the final decision on the prior complaint are properly dismissed for having been raised in a prior complaint. However, for the alleged incidents set forth in claims (c) and (d) that occurred after the January 26, 2022 final decision for the prior complaint, the Agency improperly dismissed these matters because while the issues may have been similar these matters were not identical (different time period). Dismissal of Incidents (c)-(e) for Raising Matters Not Like or Related to Matters Raised with an EEO Counselor The Agency improperly dismissed incidents (c) - (e) for not having raised these matters with an EEO Counselor and for not being like or related to the matters raised during EEO Counseling. We find that Complainant clearly alleged during EEO Counseling that he was being subjected to a hostile work environment by his supervisor and set forth the alleged AWOL incidents in support of this claim, incidents (a )- (b). Complainant, in his formal complaint, alleges additional incidents in support of his hostile work environment claim in which he identifies his supervisor as the alleged responsible management official. Based on the foregoing, we find that incidents (c) - (e) are like or related to the matters Complainant raised during EEO Counseling. 4 2023000745 Dismissal of the Entire Complaint for Failure to State a Claim In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive:” and the complainant subjectively perceives it as such. Harris, supra at 21-22. Thus, not all claims of harassment are actionable. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment. The Agency improperly dismissed incidents (a)-(e) for failure to state a claim. Complainant is alleging that he was threatened with AWOL in April 2022, and actually was designated as AWOL in June 2022,2 received limited training and work assignments, and was denied a transfer which he was promised based on his protected classes. When viewed collectively, we find that Complainant has set forth an actionable claim of harassment. Finally, to the extent, the Agency asserts that Complainant was marked as AWOL in June 2022 because he did not return from leave as scheduled and did not provide sufficient documentation for not calling in, we find that this assertion goes to the merits of complainant’s complaint, and is irrelevant to the procedural issue of whether he has stated a justiciable claim. See Osborne v. Dep’t of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. U.S. Postal Serv., EEOC Request No. 05930220 (Aug. 12, 1993); Ferrazzoli v. U.S. Postal Serv., EEOC Request No. 05910642 (Aug. 15, 1991). Accordingly, we AFFIRM the Agency’s final decision solely regarding matters that occurred prior to January 26, 2022 for incidents (c) - (d). However, we REVERSE the Agency’s dismissal of the remainder of the complaint, defined herein as a hostile work environment, and we REMAND these matters to the Agency for further processing in accordance with 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. 2 Complainant, on appeal, appears to clarify that in April 20,22 he was threatened with AWOL rather than actually being marked as AWOL. 5 2023000745 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 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. 6 2023000745 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 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). 7 2023000745 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. 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 February 28, 2023 Date