Walton Z.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.

Equal Employment Opportunity CommissionDec 12, 2017
0120172551 (E.E.O.C. Dec. 12, 2017)

0120172551

12-12-2017

Walton Z.,1 Complainant, v. Wilbur L. Ross, Jr., Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Walton Z.,1

Complainant,

v.

Wilbur L. Ross, Jr.,

Secretary,

Department of Commerce

(National Oceanic & Atmospheric Administration),

Agency.

Appeal No. 0120172551

Agency No. 54201700136

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 27, 2017, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a General Vessel Assistant on a ship operating out of the Agency's Naval Station Newport Marine Operations Center facility in Newport, Rhode Island.

On June 6, 2017, Complainant filed a formal EEO complaint alleging that he was discriminated against when he was suspended for 14 days from February 10 - 23, 2017, and on March 23, 2017, was placed on administrative leave until further notice and escorted off the ship and other employees were cautioned not to allow him on the ship. Complainant further alleged that prior to these events, he had been subjected to an ongoing pattern of discriminatory harassment that included, but was not limited to, unfavorable work assignments, bullying, and refusal to communicate with him even when necessary to perform work assignments, as well as favoritism towards certain female employees arising from inappropriate personal relationships.

The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. Characterizing the complaint as solely raising a claim of unlawful retaliation, the Agency reasoned that, "Complainant did not identify, either during [the] pre-complaint counseling or in his formal complaint, any type of retaliation covered by Title VII." Instead, the Agency indicated that Complainant had only alleged retaliation for whistleblowing concerning matters not related to discrimination claims. The Agency concluded that Complainant could file his complaint with the Office of Special Counsel that investigates allegations of whistleblower retaliation. This appeal followed.

The Agency did not submit a brief in response to this appeal.

ANALYSIS AND FINDINGS

Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age, disability, genetic information, or retaliation. See 29 C.F.R. 1614.103(a) and 1614.106(a).

After careful review of the record, we conclude that a fair reading of the formal complaint in this case, in conjunction with the related EEO counseling report and Complainant's lengthy narrative statements explaining his allegations, shows that Complainant raised a viable claim of retaliation in violation of Title VII. Complainant stated that he was threatened on his first day on the ship when he was told by the Chief Engineer that the Chief Engineer had only one rule - that if you wanted big trouble with him, "all you have to do is go to Command on ANYTHING." Complainant said he did complain to the Captain about many matters, and some did not involve protected opposition to perceived discrimination. However, his written statements also contain allegations that he reported ongoing discriminatory harassment, as well as favoritism he believed was shown to certain female employees. These allegations are sufficient to state a claim of unlawful retaliation. The Commission has found that any action by an agency manager that has the effect of intimidating or chilling the exercise of those rights under the EEO statutes constitutes a violation of the statutory protection against retaliation. See Binseel v. Dep't of the Army, EEOC Request No. 05970584 (October 8, 1998); Yubuki v. Dep't of the Army, EEOC Request No. 05920778 (June 4, 1993); Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). Here, whether or not Complainant's actions actually amounted to protected oppositional activity can only be determined through a legal adjudication following an investigation into his allegations.

We further conclude that, although he did not check the appropriate box on the formal complaint form, Complainant has also raised a claim of sex discrimination, as his narrative statements attached to his complaint assert favoritism shown to certain named female employees, in part as a result of what he characterized as inappropriate personal relationships with male supervisors.

Accordingly, the Agency's dismissal of the complaint is REVERSED and the matter is REMANDED to the Agency for further processing pursuant to the following Order.

ORDER (E1016)

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 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.

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 (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 tends 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. 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 (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 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

December 12, 2017

__________________

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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