Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency. Appeal No. 0120150820 Agency No. AREUKAI14OCT03931 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated November 18, 2014, dismissing an equal employment opportunity (EEO) 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 Complainant began his employment with the Agency in September 2009 as a Registered Nurse at the Agency's Landstuhl Regional Medical Center in Landstuhl, Germany, subject to a one-year probationary period. On November 5, 2014, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the basis of sex (male) when: on September 14, 2010, he was terminated from his position during his probationary period. In his formal complaint, Complainant alleged that his job performance was not in question until the Colonel, who was the hospital commander, decided that Complainant was "unfit because of [his] non-conformance with sex-stereotypes." Complainant alleged that his homosexuality was well known by everyone in the department where he worked, including the Colonel.1 On November 18, 2014, the Agency issued a final decision dismissing the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), on the grounds of untimely EEO counselor contact. Specifically, the Agency determined that Complainant initiated EEO counselor contact on October 14, 2014, which it determined was well beyond the 45-day limitation period from Complainant's September 14, 2010 termination. An attachment to the 2014 EEO Counselor's Report reflects that Complainant asserted that he first contacted an Agency EEO office to complain about his termination on September 15, 2010, and visited the EEO office again on November 22, 2010. He stated that at that time, he was informed that his claim was not covered under the purview of Title VII, and he was referred to the Office of Special Counsel (OSC).2 Complainant filed a complaint with OSC, which subsequently dismissed his claim. Complainant thereafter determined that he could not seek recourse with the Merit Systems Protection Board (MSPB) because he had been a probationary employee. Complainant also indicated that he attempted to pursue a claim with the Office of Personnel Management (OPM), but determined that OPM had "no standing in the matter." Complainant stated the he thereafter sought information pursuant to the Freedom of Information Act, and received no information until January 2012, which was heavily redacted. Complainant asserted that he "finally spoke with someone" from the Equal Employment Opportunity Commission (EEOC or Commission) and, based on the information he received, contacted an Agency EEO counselor again on October 14, 2014. Upon receipt of the Agency's decision dismissing his complaint, Complainant filed the instant appeal. ANALYSIS AND FINDINGS EEOC Regulations 29 C.F.R. § 1614 107(a) (2) provides that an agency shall dismiss a complaint that fails to comply with the applicable time limits contained in 1614.105. Section 1614.105 (a)(1) provides that 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 personnel action within 45 days of the effective date of the action. Upon an examination of the record, we determine that this is not a case of Complainant "sitting on his rights" for a four-year period prior to initiating EEO Counselor contact. Instead, the record supports a finding that immediately following his termination, he unsuccessfully attempted to initiate EEO counselor contact, and was thereafter unsuccessfully routed to a succession of possible avenues of recourse, including the OSC, the MSPB and OPM. Finally, after contact with the EEOC, he again contacted an EEO Counselor in October 2014. We note that in its statement opposing the appeal, the Agency argues that whether Complainant was given inaccurate information in 2010 is "not relevant to the present issue of timeliness." The Agency points to a timeline submitted by Complainant on appeal and argues that Complainant has identified November 22, 2010, as his first contact with an Agency EEO office. The Agency asserts that, even if true, this contact was still more than 45 days from Complainant's September 14, 2010 termination. However, the evidence of record supports Complainant's claim that his initial contact with an Agency EEO office was on September 15, 2010, one day after his termination. The record contains a copy of an "Information Inquiry Summary," prepared by an identified official in the Landstuhl EEO office, that clearly indicates that Complainant' s initial contact concerning his termination was made by telephone on September 15, 2010. At that time, he was scheduled for an in-person appointment to come into the EEO office on November 22, 2010. Documentation of that visit confirms that Complainant was told that his claim of discrimination was "not covered under the purview of TVII." Given the unique circumstances of this case, we find equitable grounds for excusing Complainant's delay in successfully engaging the EEO complaint process to raise his claim of discrimination based on sex-stereotyping when he was terminated from his position with the Agency in September 2010. See 29 C.F.R. § 1614.604(c). CONCLUSION The Agency's final decision on the grounds of untimely EEO Counselor contact is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER (E0610) The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. § 1614.108 et seq. 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. 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 (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 (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 (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 August 12, 2015 __________________ Date 1 The EEO Counselor's Report summarizes an interview with Complainant's immediate supervisor, who confirms that she had no problems with Complainant's work performance and "refused" to be involved in the decision to terminate his employment, which she reported occurred while she was on leave at the behest of "higher ups." The record contains the termination letter, dated September 14, 2010, issued by someone other than Complainant's immediate supervisor, which indicates the action was being taken because Complainant's email communication of August 26, 2010, to the Colonel, and actions in a subsequent meeting with the Colonel, "reflect a lack of respect and professionalism . . . toward command staff." 2 The Commission has held that claims of discrimination based on sexual orientation are valid claims of sex discrimination under Title VII and should be processed in the 29 C.F.R. Part 1614 EEO complaint process. Baldwin v. Department of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120150820 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120150820