U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Patrick S,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120172576 Agency No. 176114201836 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 21, 2017, 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 an Emergency Management Specialist at an Agency facility in Washington, District of Columbia. On May 4, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), color (Black), and reprisal for prior protected EEO activity when (1) about February 8, 2013, the Agency placed Complainant on leave without pay (LWOP) for two weeks and (2) effective April 2, 2013, the Agency removed Complainant from his position as Installation Emergency Manager. The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO contact. The Agency stated that Complainant initiated EEO contact on March 22, 2017, approximately four years after the alleged discriminatory actions. The Agency stated further that Complainant had another complaint in the meantime in which he did not raise the new issues for processing. The instant appeal from Complainant followed. On appeal, Complainant stated he filed an earlier complaint on July 27, 2012 (Complaint One). He stated, on February 22, 2013, the Agency issued him a Notice of Proposed Removal and he informed the Agency EEO Complaints Manager (CM1) that he wanted to add a claim of reprisal to Complaint One.2 Complainant stated that he did not see evidence of the added claims so he inquired with CM1 and, on March 4, 2013, CM1 responded "I informed the investigator of your added claim of reprisal last week."3 Complainant added that, on April 2, 2013, the Agency issued a decision to remove him effective that day and he contacted CM1 to add retaliation based on removal to Complaint One.4 Following the investigation for Complaint One, Complainant filed a hearing request on October 30, 2013. The matter was pending and then on hold at the hearing stage for some time. During an initial hearing conference on August 10, 2016, the assigned Administrative Judge (AJ) instructed Complainant to work with the Agency on processing the 2013 claims instead of as an amendment to Complaint One. The AJ did not want to address the 2013 matters because three years had elapsed since investigation of Complaint One and such would cause further delay. Complainant stated that, on September 29, 2016, he contacted the Agency EEO Manager (CM2) about the new claims. CM2 stated that the Agency would not accept the 2013 claims. Complainant provided documentation of correspondence between him and CM2 regarding the 2013 claims. In opposition to Complainant's appeal, the Agency stated that Complainant did not display due diligence in pursuing his 2013 claims. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within forty-five (45) days of the effective date of the action. Failure to bring an alleged discriminatory matter to the attention of an EEO Counselor in a timely manner pursuant to regulation, and absent circumstances requiring extension mandates dismissal of complaints for untimeliness. 29 C.F.R. § 1614.107(a)(2). Where there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." See Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994)(quoting Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992). In addition, in Ericson v. Dep't of the Army, EEOC Request No. 05920623 (Jan. 14, 1993), the Commission stated that "the agency has the burden of providing evidence and/or proof to support its final decision." See also Gens v. Dep't of Defense, EEOC Request No. 05910837 (Jan. 31, 1992). Upon review, we disagree with the Agency and find that Complainant's complaint was improperly dismissed. Here, the Agency stated that Complainant initiated EEO contact regarding his 2013 claims on March 22, 2017. The record shows that Complainant initiated EEO contact with Agency Complaints Manager, CM1, on February 28, 2013 regarding LWOP and on April 2, 2013 regarding removal. Complainant had a prior complaint, Complaint One, pending at the Agency between 2012 and 2013. In a March 4, 2013 email, CM1 acknowledged that she contacted an Investigator regarding Complainant's request to add a claim of reprisal. Complaint One was at the hearing stage between late 2013 and 2016. On August 10, 2016, the assigned AJ instructed Complainant to address his 2013 claims with the Agency rather than prevent further delay to Complaint One. Summarily, the record shows that Complainant contacted CM1, as early as February 28, 2013, to add the LWOP/Proposed Removal claim to Complaint One and, on April 2, 2013, to add the claim of removal to Complaint One. Between late 2013 and 2016, Complaint One was in investigation status at the Agency and pending at the hearing stage. Complainant had to wait to ask the assigned AJ to add his 2013 claims to Complaint One. We find that the Agency did not meet its burden to show that Complainant initiated EEO contact in an untimely manner, much less March 22, 2017. The instant complaint should proceed in the EEO process, albeit apart from Complaint One. CONCLUSION Based on the above, we REVERSE the final agency decision and REMAND the matter to the Agency for further processing consistent with this decision and the Order below. 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 (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 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. 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 November 28, 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 The record contains an email, timed February 28, 2013 22:45, from Complainant to CM1 in which he speaks about not getting paid for the last two weeks of work and inquiring about the new claim he submitted. 3 The record contains an email, timed March 4, 2013 7:22 AM, from CM1 to Complainant stating "I informed the Investigator of your added claim of reprisal last week." 4 The record contains an email, timed April 2, 2013 11:57, from Complainant to CM1 stating "Greetings [CM1], I would like to add this as retaliation" and forwarding an email dated the same day with the subject "Your Proposed Removal Decision." --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120172576 2 0120172576