U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Myung S.,1 Complainant, v. Sean J. Stackley, Acting Secretary, Department of the Navy, Agency. Appeal No. 0120162772 Agency No. 166293602353 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated July 29, 2016, dismissing her 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 Management Specialist at the Agency's Naval Information Operation Center facility in Fort Meade, Maryland. On June 22, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when: 1. On February 18, 2016, Complainant was issued a Formal Counseling; and 2. On or about December 9, 2015 Complainant learned that the Management Specialist detail to which she had been assigned a month prior (date unspecified in the record) had been reclassified from a Step 12 to a Step 11 position. The Agency dismissed claim 1 on the grounds of mootness and claim 2 for untimely EEO Counselor contact. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(5) provides for the dismissal of a complaint when the issues raised therein are moot. To determine whether the issues raised in complainant's complaint are moot, the factfinder must ascertain whether (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo v Dep't of the Navy, EEOC Request No. 05970343 (July 10, 1998). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented. With regard to claim 1, the Dismissal noted: In this instance, the [Formal Counseling] was an internal memorandum that was not a part of your official personnel file. In addition, since [it] was issued, you left your position at [the facility]. As a result, I find that there is no reasonable possibility that the alleged violation will recur. Because the [Formal Counseling] was not an adverse personnel action, I find that the alleged violation did not have any effects. Even if there were effects, any such effects have been eradicated by your departure from the command. The record submitted by the Agency in this case is very sparse but we note that it does not contain evidence showing Complainant "departed the command" as alleged in the Dismissal. Furthermore, on appeal Complainant argues that: This counseling would mark my second for insubordination. The supervisors are instructed to document instances such as these and though not formal or in personnel permanent file [sic] they are used against them in order to show a trail of issues and attempted corrective measures. I should have never received either of the counselings and since the first case has not been resolved both would be counted against me in future situations that the command was attempting to implicate. Complainant's Appeal Brief. We note that in Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission stated that "the agency has the burden of providing evidence and/or proof to support its final decisions." See also Gens v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992). Because the record does not establish that Complainant "left the command," or that "leaving the command" meant that the internal memorandum would not be counted against Complainant in the future, the Agency has not met its burden of establishing that claim 1 is moot. With regard to claim 2, EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination 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 Agency argues that Complainant learned of the position downgrade on or about December 9, 2015 but did not contact an EEO Counselor until April 2, 2016, which is beyond the 45-day period. We note, however, that the Commission has adopted a reasonable suspicion standard to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Appeal No. 01965648 (Feb. 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. In her Informal complaint, Complainant identified the second issue as being "[o]n 10 Mar [20]16, [Complainant] was given conflicting reasons on why her position was downgraded from a GG-12 to a GG-11," and in her Formal Complaint, Complainant maintains that: After discussing the midpoint I asked my supervisor why the GG-0343-12 was reclassified to an 11 while I was detailed. He stated that the Standard Labor Data Collection and Distribution Application (SLCADA) function had been moved to N4 (Budget) and that it along with DCPS was a big portion of the PD. He stated that was 30% of the position's task therefore bringing it to an 11. I then asked him if SLCADA time and attendance was big enough to change the 12 to an 11 then why was the Financial Technician position (GG-0501-11) that absorbed the function in N4 still an 11 after reclassified? [He] stated that was budget's call. Also Ms. [A] (another employee) stated that I couldn't be detailed into a higher grade position and therefore it needed changing. We all were in attendance in training with Ms. [B] (a third employee) classifier with CIPO. In her training she stated that changes added to an existing PD's work load where a task consumed 30% or more of the personnel's time would mean the PD would be marked for "New" classification. The SLDCADA function was removed from both my team lead and my PD but my grade dropped. I believe the PD was lowered as reprisal against me by the command. Complainant thus maintains that she did not develop reasonable suspicion until on or about March 10, 2016 after receiving inconsistent responses about the grade reduction. We therefore find that her April 2, 2016 Counselor contact was timely. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Dismissal and REMAND the claims for further processing in according with this decision and the Order below. ORDER (E0610) 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 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 (M0416) 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 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. The requests 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 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 February 16, 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120162772 2 0120162772