0120152536
04-21-2016
Anya V.,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
Anya V.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120152536
Agency No. 156786501441
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 17, 2015, 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 an Environmental Engineer GS-12 and Director for the Agency's Marine Corps Air Station ("MCAS") in Miramar, California.
On June 4, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment as a result of discriminatory harassment on the basis of reprisal for prior protected EEO activity (Agency No. DONMC126786501115, filed in February 2012; brought in 2013 as Southern California District Court Case No. 13CV1738L) when:
1. On June 1, 2014, the former Director of the Environmental Department reassigned her current supervisor ("S1") from Physical Scientist GS-13, Naval Facilities Engineering Command, to Assistant Environmental Management Officer/Supervisory Physical Scientist GS-13, MCAS Miramar, without providing Complainant with an opportunity to compete for the position;
2. On various dates, S1 treated Complainant differently than her coworkers by having MCAS Legal Counsel and Deputy Counsel ("C1" and "C2") review her routine work, projects and other National Environmental Policy Act ("NEPA") related tasks;
3. On March 5, 2015, S1 told Complainant that her only task was to keep C1 happy so that he can protect her when arrows starts coming;
4. On March 5, 2015, S1, C1 and C2 publically disparaged Complainant during meeting a about F35B Aircraft basing;
5. On March 16, 2015, S1, C1 and C2 publically disparaged Complainant during a meeting about Microgrid Energy Security;
6. Since the incidents in Claims 4 and 5 took place it has been difficult for Complainant to perform her duties and responsibilities; and
7. On unspecified dates, Complainant's recommendation to complete an Environmental Assessment (EA) report for the above projects was ignored.
The Agency dismissed Complainant's complaint in its entirety pursuant to 29 C.F.R. � 1614.107(a)(2), and � 1614.106(b) for untimely filing of the formal complaint; and alternately dismissed Claim 1 pursuant to � 1614.105(a)(1) for untimely contact with an EEO Counselor.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) states that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in � 1614.105, � 1614.106 and �1614.204(c). These time limits is also subject to waiver, estoppel, and equitable tolling under 29 C.F.R. � 1614.604(c).
Formal Complaint
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a written complaint with an appropriate agency official within fifteen (15) calendar days after the date of receipt of the notice of the right to file a formal complaint. A complaint is deemed timely if it is received or postmarked before the expiration of the applicable filing period, or in the absence of a legible postmark, if it is received by mail within five days of the expiration of the applicable filing period, pursuant to 29 C.F.R. � 1614.604(b). Where, as here, 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 Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120132751 (Jan. 9, 2014); Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) Here, the Agency must show that the complainant received the notice and that the notice clearly informed the aggrieved person of the 15-day filing time frame. See Paoletti v. United States Postal Serv., EEOC Request No. 05950259 (Aug. 17, 1995)
The record provides that on May 11, 2015, the Agency confirmed Complainant's address of record and sent her the Notice of Right to File a Formal Complaint ("Notice") to that address via certified mail. The Agency provided sufficient proof of receipt in the form of a certified mail delivery confirmation dated May 14, 2015, which included a tracking number, Complainant's address, and Complainant's signed and printed name. The Notice described the 15-day time limit, which was also explained in pre-complaint documents signed by Complainant. Complainant did not file her formal complaint until June 4, 2015, which is beyond the limitation period.
On Appeal, Complainant argues that her Formal Complaint was timely because May 29, 2015 was the proper date of receipt for purposes of calculating the filing deadline. Complainant also argues that she did not sign the May 14, 2015 delivery confirmation because she was in the Philippines from May 13 through 28, 2015. Upon her return, Complainant alleges that she discovered the Notice in her mailbox, undated, and missing its return receipt. Complainant promptly completed the form to file a Formal Complaint and filed on June 4, 2015 via email. Complainant included a short explanation of her stated receipt date of May 29, 2015, along with copies of her stamped passport and airline tickets provided for the record.
The Agency responds that the date of receipt is May 14, 2015, regardless of whether Complainant personally signed her name on the delivery confirmation. The Commission has held that receipt of a document at a complainant's correct address, i.e., address of record, by a member of the complainant's family or household of suitable age and discretion creates a rebuttable presumption of constructive receipt. See Fontanella v. Gen. Serv. Admin., EEOC Request No. 05940131 (Apr. 10, 1995). Complainant may then rebut the presumption by showing proof that the person who signed for the document was not a member of the complainant's household or family of suitable age and discretion. See Fontanella, supra., Brent v. United States Postal Serv., EEOC Appeal No. 01A23958 (Oct. 22, 2002); Cobb v. United States Postal Serv., EEOC Request No. 05A20719 (Jul. 24, 2002)
We find Complainant's arguments are insufficient to rebut the Agency's evidence of constructive receipt. However, Complainant has demonstrated that she was unavailable throughout the filing period with the exception of the last day. Based on the record, we disagree with the Agency's assertion that one day, immediately following an approximately fifteen (15) hour flight provided "sufficient opportunity" for Complainant to draft her formal complaint. Given the specific circumstances of this individual case, and noting the short time frame in which Complainant filed her complaint upon discovering the Notice, we determine that there is sufficient justification to exercise our discretion under 29 C.F.R. �1614.604(c), and extend the filing of the formal complaint through June 4, 2015. See Starr R. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120142090 (Nov. 17, 2015
EEO Counselor Contact (Claim 1)
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEOC Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the Commission to extend the time limit if the complainant can establish that complainant was not aware of the time limit, that complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the lime limit, or for other reasons considered sufficient by the agency or Commission.
In the instant case, Complainant was aware that she had not been provided with an opportunity to apply for S1's position on June 1, 2014, but did not seek counseling until March 18, 2015, which is beyond the 45-day limitation period. The Commission has consistently held that a complainant who has engaged in prior EEO activity is deemed aware of the time frames required for filing complaints in the EEO procedure. See Williams v. Dep't of Homeland Security, EEOC Appeal No. 0120111236 (Oct. 4, 2011) (citing Coffey v. Dep't. of the Navy, EEOC Request No. 05901006 (Nov. 16, 1990)) As referenced above, Complainant has engaged in prior protected EEO activity. Further, Claim 1 alleges an identifiable discrete act of discrimination. Claim 1 was properly dismissed for untimely EEO Counselor contact.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is Affirmed in part and REVERSED in part. Claim 1 is dismissed, and Claims 2, 3, 4, 5, 6, and 7 are hereby REMANDED for further processing in accordance with this Decision and the Order below.
ORDER
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 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
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, 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. 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION
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, 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
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
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
April 21, 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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120152536
2
0120152536