0120162080
10-25-2016
Abraham G.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Abraham G.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120162080
Agency No. 12713
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated May 12, 2016, 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 Deputy Chief of Police at the Agency's Washington Navy Yard facility in Washington DC. On March 25, 2016, Complainant attempted to file a formal complaint alleging that the Agency subjected him to discrimination on the basis of race (African-American) when:
1. On October 7, 2015 Complainant was subjected to harassment.
The Agency dismissed the claim for untimely filing of the Formal Complaint. Specifically, the Agency found that the Notice of Right to File a Formal Complaint (NRF) was mailed to Complainant's representative on March 16, 2016 and that, while the Agency received correspondence from Complainant on April 5, 2016 referencing Complainant's intent to file a Formal Complaint and notifying the Agency of Complainant's representative, the Formal Complaint was not included in the April 5, 2016 mailing. The Agency noted that the correspondence stated that the Formal Complaint was enclosed but no such document was included in the mailing envelope. The Dismissal further noted that the Agency contacted Complainant's representative on April 20, 2016 notifying her that the Formal Complaint had not been received but as of the date of the Dismissal, the Formal Complaint had still not been received.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an Agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so. The Dismissal notes that the NRF was mailed to Complainant's representative on March 16, 2016 and the record shows it was received on March 18, 2016. The Dismissal further notes that on April 5, 2016, the Agency received correspondence form Complainant's representative notifying the Agency of Complainant's intent to file a formal complaint and confirming the identity of Complainant's representative. While the correspondence stated that the formal complaint was enclosed "the formal complaint document was not enclosed as stated." Dismissal, p. 1.
On appeal, the Agency submitted affidavits from three Agency personnel (AP1, 2, & 3) who averred that the Agency received two identical mailings from Complainant's representative, at two different Agency addresses. See Agency Appeal Brief, Exhibits B, C, & D. The affidavits, signed by the Agency personnel who opened the envelopes, averred that one mailing was received at the Agency on March 30 and the other on April 5, but that neither envelope contained a formal complaint. See id.
The record shows that AP1 contacted Complainant's representative by email on April 20, 2016 notifying her that no formal complaint had been included. AP1 further averred that she never received a response to the email, see id, and that it was not until after the Agency issued its Dismissal that Complainant's representative submitted the formal complaint via email on May 23, 2016, well beyond the 15-day limit.
Complainant maintains that the formal complaint was included in the two mailings dated March 25, 2016 and that neither mailing was returned by the United States Postal Service as "returned mail." We note, however, that since the Agency does not deny that correspondence from Complainant dated March 25, 2016 was received by the Agency, the fact that the mailings were not returned to Complainant is immaterial. Instead, the pertinent issue is whether or not the envelopes contained the formal complaint. Complainant's representative has also included an affidavit attesting to the fact that the formal complaint was mailed on March 25, 2016. We note, however, that while the affidavit states that the formal complaint was mailed, it does not state that the signor witnessed the formal complaint being placed in the envelopes prior to mailing. It thus appears that Complainant's representative sent two envelopes to the Agency on March 25, but that doubtless due to oversight, neither envelope contained the formal complaint.
On appeal, Complainant's representative argues that "the Agency's position is precarious" because the Dismissal referenced only the correspondence received by the Agency on April 5 and not the correspondence received in March 28. See Appellant's Reply to Agency's Opposition, p. 3.
[AP1] stated that she had not received any correspondence until April 5, 2016. This we now know is not true and the Agency in fact had correspondence on March 28, 2016 . . . Now, subsequent to [Complainant's] Appeal, the Agency acknowledges receipt of said mailings, only now claiming that said mailing did not include [Complainant's] Formal Complaint.
Id.
We are unpersuaded by Complainant's argument. The Agency clearly stated in its Dismissal, as well as in the April 20 email, that no formal complaint had been received but contrary to Complainant's argument AP1 did not state she had not received any correspondence until April 5, 2016. Instead, the Dismissal stated:
On April 5, 2016, we received correspondence (ref d) informing our off ice that you were filing a timely formal complaint; confirming that [_________] was complainant's attorney; and a Power of Attorney that designated the firm of [_______________] to serve as your attorneys regarding all matters relating to your federal employment. The formal complainant document was not enclosed as stated.
Dismissal.
While the Dismissal only referenced the April 5 correspondence we fail to see how this makes the Agency's position precarious. Complainants may submit correspondence at any time and since there was still time for Complainant to submit his formal complaint by the time the Agency received his first item of correspondence on March 28, the Agency's position in dismissing the complaint is not made precarious by the fact that it referenced only the second item of correspondence in its Dismissal.
The record shows that AP1 emailed Complainant's representative on April 20 and notified her that no formal complaint had been included in the envelopes. See id., Exhibit G. AP1 averred that she received no response to this email and that Complainant's attorney made no attempt to contact her in writing. See Exhibit B. In response, Complainant's representative on appeal states that she "responded to [AP1] an [sic] April 20, 2016 email," See Appellant's Reply to Agency's Opposition, p. 2. Such an email, however, has not been included in the record.
Complainant's representative next argues on appeal that she emailed a copy of the formal complaint to the Agency on April 29, 2016 and has included a copy of the email. See Appellant's Statement in Support of Appeal, Exhibit 4. The Agency argues that it has no record of receiving this email and notes that:
A copy of the email produced by [Complainant's] counsel a month later, inexplicably does not include a read receipt, subject line, or attachment line. In any event, even if the Agency had received the April 29, 2016 email, the Formal Complaint was still submitted 29 days late and dismissal was justified.
Agency Appeal Brief, p.3, fn 1.
CONCLUSION
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 (S0610)
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. 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 (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
October 25, 2016
__________________
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.
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