Whitney C.,1 Complainant,v.Dr. Mark T. Esper, Acting Secretary, Department of Defense (Defense Commissary Agency), Agency.

Equal Employment Opportunity Commission

Sep 10, 2019

2019003991 (E.E.O.C. Sep. 10, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Whitney C.,1
Complainant,

v.

Dr. Mark T. Esper,
Acting Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.

Appeal No. 2019003991

Agency No. DeCA-00045-2019

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated May 24, 2019, 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., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Meat Cutting Worker, WG05-04, at the
Agency’s Commissary facility for Naval Air Station Oceana, Virginia.

On December 10, 2018, Complainant contacted an EEO Counselor. Informal efforts at resolution
were not successful. On February 11, 2019, Complainant filed a formal complaint alleging that
the Agency subjected her to discrimination based on race, sex, color, and disability.

The Agency framed Complainant’s EEO claim as “when on several occasions she was not selected
for a permanent full time position. The most recent occurring in the summer of 2018.”

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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The Agency dismissed the formal complaint for untimely EEO Counselor contact pursuant to 29
C.F.R. § 1614.107(a)(2), finding that more than 45 days had elapsed from the alleged
discrimination until Complainant contacted the EEO Counselor on December 12, 2018. According
to the Agency, the only relevant non-selection among Complainant’s claims occurred during the
summer 2018, when the Commissary’s management increased another Meat Cutting Worker to
full-time within the meat department.

The instant appeal followed. On appeal, Complainant asserts that on September 30, 2018, she
learned that management had increased to full-time a Caucasian, male, WG-04, to full-time work.
Therefore, Complainant contended that her EEO Counselor contact was timely under EEO
regulations.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. §1614.107(a)(2) states and agency shall dismiss a complaint that fails
to comply with the applicable time limits contained in §1614.105. Under 29 C.F.R.
§1614.105(a)(1), an aggrieved person must initiate contact with an EEO Counselor within 45 days
of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within
45 days of the effective date of the action. If a complainant can establish that she was unaware of
the time limit, did not reasonably know that the discriminatory matter or personnel action occurred,
where circumstances beyond her control prevented her from contacting an EEO Counselor within
the time limit, or for other reasons considered sufficient, then EEOC or the Agency shall extend
the time limit in accordance with 29 C.F.R. 1614.105(a)(2).

Complainant’s EEO Counselor contact was, in fact, timely pursuant to 29 C.F.R. § 1614.105(a)(2).
The Agency bore the burden of proving Complainant’s untimeliness. Guy v. Dep’t of Energy,
EEOC Request No. 05930703 (Jan. 4, 1994) and Ericson v. Dep’t of the Army, EEOC Request
No. 05920623 (Jan. 4, 1993). The Agency failed to do so here. Instead the Agency in essence
distilled the instant formal complaint to one incident that transpired approximately six months
before Complainant’s EEO Counselor contact. However, during the informal process, in her
formal complaint and on appeal, Complainant consistently described many times when she
suspected discrimination because management up-graded other Commissary workers to a full-time
position while Complainant could obtain part-time. The Agency acknowledged that on November
28, 2018, Complainant asserted that a male, Caucasian coworker had been working full-time. In
its dismissal, the Agency argued this identified co-worker was not a proper comparator to
Complainant. The Agency, however, has articulated a reason that goes to the merits of
Complainant’s claim, and is irrelevant to the procedural issue of whether she has stated a justiciable
claim. See Ferrazzoli v. USPS, EEOC Request No. 05910642 (August 15, 1991).

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EEOC has consistently applied our “reasonable suspicion” standard to determine when the 45-day
limitation period triggered. Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11,
1999). Thus, the time limitation triggered at the point that Complainant reasonably suspected
discrimination, although before all the facts to support a charge of discrimination became apparent.
Here, we find that Complainant reasonably suspected discrimination for purposes of her claim on
November 28, 2018. Therefore, Complainant’s initial EEO contact in December 2018 was within
45 calendar days of the date that Complainant reasonably suspected discrimination, if not the date
that the alleged discrimination occurred.

CONCLUSION

The Agency’s final decision is REVERSED. The formal complaint is REMANDED to the Agency
for further processing in accordance with the ORDER below.

ORDER (E1016)

The Agency is ordered to process the remanded claims (failure to accommodate culminating in a
constructive discharge) 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.

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 (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
Complainant and his representative.

If the Agency does not comply with the Commission’s order, Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a).
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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, 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 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 CFR § 1614.503(f) for enforcement by that agency.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)

The Commission may, in its discretion, reconsider the decision in this case if 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. 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.
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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

September 10, 2019
Date