0120112711
10-28-2011
Wayne A. Wilson, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Wayne A. Wilson,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120112711
Agency No. 100017102504
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
undated decision, (Dismissal) dismissing his 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
At the time of events giving rise to this complaint, Complainant worked
as a Police Officer at the Agency’s Washington Navy Yard facility in
Washington DC. On September 4, 2010, Complainant filed a formal complaint
alleging that the Agency subjected him to discrimination on the bases
of race (African-American), sex (male), and reprisal for prior protected
EEO activity under an EEO statute that was unspecified in the record when:
1. On February 25, 2010, Complainant was issued a suspension without pay;
2. Between 2005 and 2009 other similarly situated coworkers who were
outside of Complainant’s protected classes received preferential
treatment with regard to duty assignments, duty hours, pay and discipline;
and
3. Complainant was subjected to retaliation by management
The Agency dismissed claims 1 and 2 for untimely EEO Counselor contact,
and claim 3 for failure to state a claim. Specifically, the Agency found
that Complainant did not contact an EEO Counselor until June 25, 2010,
which is beyond the 45-day regulatory period. With regard to claim 3,
the Agency found that Complainant had not engaged in any prior EEO
activity and therefore his claim of reprisal failed to state a claim.
CONTENTIONS ON APPEAL
Complainant argues that the Agency misconstrues his claim and that his
EEO Counselor contact was timely. Complainant maintains that he is not
alleging that the February 2010 suspension was discriminatory but that
the Agency’s failure to award him back pay upon his reinstatement,
effective June 25, 2020, is what constitutes the discriminatory act.
Complainant maintains that other female and White coworkers who were
suspended and subsequently reinstated received back pay and were
returned to their old shifts upon their return, while Complainant did
not receive back pay and was assigned an undesirable shift. In addition,
with regard to claim 2, Complainant argues that these allegations merely
constitute background evidence of discrimination. With regard to claim
3, Complainant maintains that after he contacted the EEO Counselor,
he experienced retaliatory harassment “including being transferred
to” another Agency facility. Complainant’s Appeal Brief, p. 4.
The Agency on appeal argues that prior to filing a Formal Complaint,
Complainant filed a mixed case appeal with the Merit Systems Protection
Board (MSPB) wherein he raised the same matters as the matters on appeal
herein. The Agency argues that the MSPB dismissed Complainant’s mixed
case appeal as untimely-filed, and that Complainant’s election of
the MSPB forum precludes his filing of an EEO complaint. With regard
to Complainant’s arguments on appeal regarding claim 3, the Agency
maintains that Complainant provided “no further details” in his
Formal Complaint about retaliation and therefore the Agency naturally
assumed he was addressing actions that took place prior to his EEO
Counselor contact. Because the record revealed no prior EEO activity
by Complainant, the Agency argues, it correctly dismissed this claim.
With regard to Complainant being transferred to another facility,
the Agency argues that Complainant could not have intended to include
such a transfer as part of a reprisal claim filed on September 4, 2010
because Complainant volunteered for the transfer on September 29, 2010.
Complainant filed a brief in response to the Agency’s appeal brief.
We note, however, that the Commission’s regulations do not allow for the
multiple filing of briefs, see 29 C.F.R. § 1614.403(d), and we therefore
decline to accept Complainant’s second brief dated July 25, 2011.
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 (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.
Complainant argues that his Counselor contact was timely because he is
not disputing the February 25, 2010 suspension-without-pay but the fact
that when he was reinstated, he did not receive back pay or his old shift,
unlike others outside of his protected bases who are otherwise similarly
situated. Complainant, however, has not indicated when he learned that
other female and White coworkers who were suspended and subsequently
reinstated, were treated differently. Furthermore, the Agency has
shown on appeal that Complainant elected the MSPB process. We note that
an aggrieved person may initially file a mixed case complaint with an
agency or may file a mixed case appeal directly with the MSPB, pursuant
to 5 C.F.R. § 1201.151, but not both. See 29 C.F.R. § 1614.302(b).
EEOC Regulation 29 C.F.R. § 1614.107(a)(4) provides that an agency
shall dismiss a complaint where the complainant has raised the matter
in an appeal to the MSPB and 29 C.F.R. § 1614.302 indicates that the
complainant has elected to pursue the non-EEO process. The record shows
that Complainant filed his mixed case appeal with the MSPB on July 6,
2010, but he did not file his EEO complaint until September 4, 2010.
With regard to claim 3, Complainant’s claim of reprisal, the Agency
argues that Complainant could not have been referring to his transfer to
another facility because Complainant volunteered for the transfer after he
filed his Formal Complaint. Such arguments, however, address the merits
of Complainant’s complaint without a proper investigation as required
by the regulations. Furthermore, whether or not Complainant volunteered
for the transfer goes to the merits of Complainant’s complaint, and is
irrelevant to the procedural issue of whether he has stated a justiciable
claim under Title VII. 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). Because we find that an
allegation of involuntary transfer states a claim of reprisal, we find
that the Agency improperly dismissed this claim.
Accordingly, we AFFIRM the Agency’s Dismissal in part and REVERSE in
part and REMAND claim 3 to the Agency for further processing.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with
29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant
that it has received the remanded claim 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999).
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 (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 (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
October 28, 2011
__________________
Date
2
0120112711
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112711