0120170377
01-09-2018
Annie F.,1 Complainant, v. Victoria A Lipnic, Acting Chair, Equal Employment Opportunity Commission,2 Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
Annie F.,1
Complainant,
v.
Victoria A Lipnic,
Acting Chair,
Equal Employment Opportunity Commission,2
Agency.
Appeal No. 0120170377
Agency No. 2016-0004
DECISION
On November 5, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated October 4, 2016, dismissing her equal employment opportunity (EEO) 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. For the following reasons, the FAD is AFFIRMED.
ISSUES PRESENTED
The issues presented are whether the Agency properly dismissed Complainant's entire EEO complaint as untimely, and dismissed part of the complaint because Complainant elected to use the negotiated grievance procedure and then settled the grievance.
BACKGROUND
At the time of the events at issue, Complainant worked as a Paralegal, GS-11, at the Agency's Detroit, Michigan Field Office.
On September 16, 2016, Complainant filed an EEO complaint alleging discrimination based on her race:
1. When, on September 25, 2015, she was not selected for the position of Trial Attorney (Civil Rights), GS-12/13, located in Detroit, under vacancy announcement D15-OGCLD-1483714-222-LAH,3 and
based on reprisal for prior EEO activity under Title VII:
2. When she was given a Letter of Reprimand dated October 30, 2015.
Complainant initiated contact with the Agency's Office of Equal Opportunity (OEO) on the above claims on October 30, 2015. At her initial interview with the EEO Counselor on November 12, 2015, Complainant and her attorney-representative (R1)4 were advised of the option to participate in Alternative Dispute Resolution (ADR)/mediation, which is conducted through the Agency's RESOLVE Program, and elected to do so. In an appellate declaration, R1 wrote that, at the initial interview, the EEO Counselor "indicated that the OEO's complaint process would be stayed while the dispute is pending with RESOLVE."
On or about November 20, 2015, R1, in his capacity as Chief Steward, filed a Step 1 grievance on behalf of Complainant in the negotiated grievance procedure alleging that the October 30, 2015, Reprimand violated the collective bargaining agreement (CBA) between the union and the Agency. R1, in his capacity of Complainant's attorney-representative for her EEO complaint, later stated that Complainant had opted not to raise her discrimination claims in her grievance.
By memorandum dated November 23, 2015, the EEO Counselor notified the RESOLVE Program that Complainant had requested mediation, and that the Notice of Right to File a Formal Complaint would be issued on or before January 28, 2016. Complaint File, p. 46. By letter to Complainant dated January 20, 2016, with copies to her representatives, the EEO Counselor advised that matters resolved in mediation (ADR/RESOLVE) would be administratively closed, and that OEO would resume processing matters that were not resolved.
The RESOLVE Program did not conduct an intake call with Complainant and R1 until February 19, 2016. According to R1, RESOLVE advised Complainant that the delay was first caused by short staffing. There was also delay due to scheduling conflicts among the parties.
Meanwhile, on January 28, 2016, the EEO Counselor emailed the Notice of Right to File a Complaint (NRF) to R1, with copies to Complainant and her non-attorney representative. The NRF advised Complainant of her right to file a formal complaint within 15 calendar days of receipt thereof,5 and gave an address for doing so. The record contains evidence generated by the Agency's email program that R1 read this email on January 28, 2016 at 11:20 AM. In her report, the EEO Counselor checked off a field which read "Date of Right to File a Discrimination Complaint issued to the Aggrieved Person who elected ADR... ADR has not been completed; 90 days has elapsed... Date January 28, 2016." This was in accordance with 29 C.F.R. � 1614.105(f), which requires that, where the aggrieved person chooses to participate in the ADR procedure (as referenced above), the NRF must be issued if the claim has not been resolved before the 90th day after the request for EEO counseling was initiated.
During the February 19, 2016 RESOLVE intake call, Complainant and R1 informed the Director of RESOLVE of her EEO claims and that she had a grievance pending on the Reprimand. According to R1, the RESOLVE Director recommended that Complainant wait until the grievance was closed before proceeding with mediation because otherwise management would be less inclined to settle the grievance. In a subsequent email to OEO eight months later, before the Agency issued its FAD, R1 wrote that the RESOLVE Director had represented in the above intake call that the EEO complaint process would be stayed while the matter was pending with RESOLVE.
On May 26, 2016, the president of the union local that covers the Detroit Field Office, two Agency managers, and Complainant entered into a settlement agreement closing her grievance. The Agency agreed to change the title of the Reprimand to "Counseling Memorandum," remove it from Complainant's electronic official personnel folder (eOPF), and not place the Counseling Memorandum in the eOPF. Complainant represented therein that she had no pending claims against the Agency on "this matter," including but not limited to EEO complaints, and that the settlement agreement constituted a request to terminate any outstanding claims on "this matter."
By email on June 7, 2016, R1 notified RESOLVE that the grievance was closed via a settlement agreement and that they were now ready to proceed with RESOLVE. Up through August 23, 2016, R1 and Complainant sent several follow up emails to RESOLVE. R1 stated that they received no response until they called RESOLVE on August 24, 2016. The RESOLVE Director responded that day by email that he had asked OEO about the status of Complainant's EEO complaint, which was useful to know before proceeding. After hearing nothing more from RESOLVE, on September 14, 2016, Complainant emailed the RESOLVE Director again, following up. The Director responded that day that the most recent delay was to determine whether RESOLVE would be addressing her EEO complaint, but that it was his understanding that the EEO complaint had been closed in February 2016. The RESOLVE Director wrote that while RESOLVE could not revive her EEO complaint, she could still use RESOLVE to address her concerns about her non-selection, but it would be treated as a non-EEO matter.
On September 16, 2016, Complainant filed her EEO complaint alleging claims 1 and 2, above. R1 explained that Complainant did so after learning from the RESOLVE Director's September 14, 2016, response that OEO closed her EEO case.
The Agency dismissed the entire complaint on the ground that Complainant did not timely file her formal EEO complaint. It found that R1, Complainant, and her non-attorney representative via email all received the NRF on January 28, 2016, and that the Agency's email program showed R1 opened the email the same day. The Agency found that Complainant filed her EEO complaint on September 16, 2016, far beyond the 15-day time limit. Without gathering statements from the EEO Counselor and the RESOLVE Director, the Agency found that it was not credible that they advised R1 and/or Complainant that the EEO process was stayed until the conclusion of the RESOLVE process. The Agency found that, even if the EEO Counselor made the alleged stay remark, it was clarified and superseded by the January 28, 2016, NRF. The Agency found that, at the very least, after receiving the NRF, it was incumbent on R1 to contact OEO and ask for an explanation rather than just take no action thereon. The Agency found that, assuming the RESOLVE Director made the stay remark during intake on February 19, 2016, this does not change the result, because the time-limit to file the EEO Complaint expired before the RESOLVE Director allegedly gave the stay advice.
The Agency also dismissed claim 2 because Complainant previously had elected to use the negotiated grievance procedure on this claim, and then settled the matter. Citing to 29 C.F.R. � 1614.301(a), the Agency found that it was irrelevant whether Complainant had opted not to raise discrimination in her grievance. It further dismissed claim 2 because Complainant had settled the matter in the grievance process; hence, it no longer stated a claim.
CONTENTIONS ON APPEAL
Complainant's appeal argument was submitted directly by her. Citing to Tommy R. v. Department of Veteran Affairs, EEOC Appeal No. 0120161097 (April 16, 2016), request for reconsideration denied, EEOC Request No. 0520160483 (Nov. 17, 2016), Complainant argues that because she was verbally advised by the EEO Counselor and the RESOLVE Director that the time-limit to file her complaint was stayed while her case was pending with RESOLVE, and she did not learn that RESOLVE efforts had ended and her EEO complaint was closed until September 14, 2016, she timely filed her complaint on September 16, 2016, as this was within 15 days of when ADR failed. Regarding the Agency's finding on the significance of the timing of the RESOLVE Director making the alleged stay remark during the February 19, 2016, RESOLVE intake call, Complainant argues that the Agency fails to mention that she had communications with the RESOLVE Director prior to their intake call, and that he gave the stay advice prior to intake. In her appeal argument, she does not specify when this communication occurred, nor does she submit a sworn statement by herself or anyone else on this. Complainant argues that the Agency improperly dismissed claim 2 because she did not raise reprisal discrimination in the grievance process. She further argues that she filed her grievance after she contacted an EEO Counselor and that the CBA prohibits grieving any pending EEO matters. Complainant also argues that the Agency's brief in opposition to her appeal should not be considered because it was untimely.
In opposition to the appeal, the Agency reiterates the findings in the FAD and requests that the FAD be affirmed. 6
STANDARD OF REVIEW
The Agency's final action is reviewed de novo. 29 C.F.R. � 1614.405(a).
ANALYSIS AND FINDINGS
Dismissal for Untimely Filing of a Formal Complaint
An agency shall dismiss a complaint when a complainant does not file a complaint within 15 days of receipt of the NRF. 29 C.F.R. � 1614.106(b) and 1614.107(a)(2). Where the aggrieved person chooses to participate in the ADR process, the NRF must be issued if the claim has not been resolved before the 90th day after the request for EEO counseling was initiated. 29 C.F.R. � 1614.105(f).
When a complainant designates an attorney as representative, service of all official correspondence shall be made on the attorney and the complainant, but time-frames for receipt of materials shall be computed from the time of receipt by the attorney. 29 C.F.R. � 1614.605(d). Here, Complainant's attorney-representative, R1, received the NRF via email on January 28, 2016. The Agency submitted evidence generated by its email program that R1 read the email on January 28, 2016, and thereafter in February 2016, and deleted and undeleted it twice, thereby showing that he did not overlook this email.
It is unclear from the record whether Complainant and/or R1 correctly perceived what the EEO Counselor and the RESOLVE Director allegedly told them regarding a stay to mean that the time-limit to file the EEO complaint was tolled until the conclusion of the RESOLVE process, no matter how long it took. We note that the Agency opined that it was not credible that the EEOC Counselor or the RESOLVE Director advised R1 and/or Complainant that the EEO process was stayed until the conclusion of the RESOLVE process. The Agency should not have assessed the credibility of anyone involved in this case in the absence of, at a minimum, sworn affidavits.
Regardless, we find that Complainant failed to timely file her complaint. Once R1 received and opened the email with the attached NRF on January 28, 2016, the 15-day time-limit to file the complaint began to run. The NRF unequivocally informed R1 that "[a]fter receipt of this notice, you have the right to file a formal complaint of discrimination within 15 calendar days" (emphasis in original). Moreover, we fail to see how R1 could believe that the NRF was, we surmise, inadvertently sent after the alleged stay advice, and thus could be ignored. In the email accompanying the attached NRF, the EEO Counselor wrote that the NRF was issued to preserve Complainant's right to file a formal complaint in accordance with regulations, that the time-limit to file the complaint was within 15 calendar days of receipt of the NRF, that this did not interfere with mediation proceedings, that she should continue working with RESOLVE, and to call her with any questions.
If the RESOLVE Director had advised Complainant about a stay, as alleged, after R1 received and opened the email with the NRF and before the time limit to file the EEO complaint had elapsed, we may have excused Complainant's late filing. We find, however, that the preponderance of the evidence is that anything the RESOLVE Director said to Complainant and/or R1 about a stay did not occur until the initial intake of February 19, 2016, after the time-limit to file the EEO complaint had expired. In an email to OEO on August 30, 2016, R1 expressed concern that because the NRF was issued on January 28, 2016, OEO might dismiss Complainant's complaint after she filed it, and raised the contentions about the alleged stay advice. After writing therein about the EEO Counselor's alleged stay advice, R1 wrote that the RESOLVE Director "...made the same representation during our intake telephone conference with him, which did not occur until February 19, 2016." Complaint file, at 73. In R1's declaration that Complainant submits on appeal, R1 makes no reference to the RESOLVE Director's alleged stay advice, but does so for the EEO Counselor. While Complainant argues that the RESOLVE Director verbally gave her the stay advice before the intake telephone call, she does not specify when, nor support this argument with a sworn statement. Given all this, we decline to find that the RESOLVE Director gave the alleged stay advice prior to the expiration of Complainant's time-limit to file an EEO complaint.
In Tommy R., the following occurred: The EEO Counselor issued the complainant a NRF while ADR was pending, and the complainant responded that ADR was still pending. The EEO Counselor acknowledged this, and the complainant and the EEO Counselor engaged in additional email exchanges regarding scheduling mediation, which EEOC found misled Complainant. Tommy R., EEOC Appeal No. 0120161097 & EEOC Request No. 0520160483. Here, the EEO Counselor allegedly gave Complainant the misleading advice before issuing the NRF, and we find that the RESOLVE Director gave the allegedly misleading advice after Complainant's time-limit to file an EEO complaint expired. We therefore find that Tommy R. is inapposite to the case at bar. Accordingly, we will affirm the Agency's dismissal of Complainant's entire complaint for failing to timely file the complaint.7
Dismissal of Issue 2
The Agency dismissed claim 2 on the additional grounds that Complainant raised her allegation on the Letter of Reprimand in a negotiated grievance, and further, that the claim was the subject of a settlement agreement. We find that the Agency properly dismissed claim 2 because Complainant previously had settled the matter. Specifically, in the May 26, 2016, settlement agreement, Complainant represented that she had no pending claims against the Agency on the Reprimand including, but not limited to, EEO complaints, and agreed that the settlement agreement constituted a request to terminate any outstanding claims concerning the Reprimand.8
CONCLUSION
After due consideration of the entire record, including arguments and evidence not specifically addressed in this decision, it is the decision of the Commission to AFFIRM the Agency's final decision.
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 (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 Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
_____________________________________ Carlton M. Hadden's signature
Bernadette B. Wilson
Acting Executive Officer
Executive Secretariat
January 9, 2018
______________________
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 Equal Employment Opportunity Commission (EEOC) is both the respondent Agency and the adjudicatory authority. The Commission's adjudicatory function is separate and independent from those offices charged with in-house processing and resolution of discrimination complaints. For the purposes of this decision, the term "Commission" or "EEOC" is used when referring to the adjudicatory authority and the term "Agency" is used when referring to the respondent party in this action. The Chair has recused herself from participating in the appellate processing of this case.
3 Complainant graduated from law school in May 2011, and was admitted to the Michigan Bar in May 2012.
4 R1, an attorney, is the Chief Steward of the union local that covers the Detroit Field Office. In her October 30, 2015, OEO initial contact form, Complainant listed R1 and a non-attorney as her representatives, and did so again on a designation of representative form for her EEO complaint on November 12, 2015. Based on who corresponded and attended meetings on Complainant's EEO case, it appears that the non-attorney representative was inactive regarding Complainant's EEO case.
5 The fifteenth day after January 28, 2016, was Friday, February 12, 2016.
6 Any statement or brief in opposition to an appeal must be submitted to the Commission within 30 days of receipt of the statement or brief supporting the appeal. 29 C.F.R. � 1614.403(f). The Agency received Complainant's brief in support of her appeal on November 7, 2016, but did not file its opposition brief until December 8, 2016. See Agency Brief, p. 1, 15. This is beyond the 30-day time-limit specified in the foregoing regulation. Accordingly, while we note the Agency's opposition on appeal, we do not consider its brief.
7 We note that there was a three-month delay between Complainant's request for ADR and the initial intake conference-call, and further delays in contact among Complainant, R1, the RESOLVE Director, and OEO. While these delays were not material to the outcome of this case, the Agency is reminded of its obligation to process EEO matters - whether or not in ADR - in a timely fashion.
8 Because the Agency properly dismissed the entire complaint as untimely filed, and claim 2 because Complainant previously had settled it, we need not address whether the Agency also properly dismissed claim 2 because she elected to file a grievance on the same matter.
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