0120152830
04-14-2016
Buck H,1 Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Buck H,1
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120152830
Agency No. 201526117FAA06
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated July 31, 2015, 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 recently transferred from the Agency's Phoenix Tower in Phoenix, Arizona, to accept a promotion to Front Line Manager (FLM) at the Agency's Los Angeles Center in Los Angeles, California.
On July 7, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination and a hostile work environment on the basis of race (African-American) and color (black) when, upon arrival to the Los Angeles Center to train for his new role as an FLM, he was subject to a hostile work environment, which included the following instances of alleged harassment:2
1. In January 2015, shortly after his arrival, the Los Angeles Center Operations Manager ("OM") irreparably harmed Complainant's professional reputation when, during a managers' meeting, he told Complainant's previous managers at the Phoenix Tower that Complainant was "lazy, unmotivated and did not want to be here;"
2. On or about January 22, 2015, the Los Angeles Center OM erroneously sent out an email stating that Complainant accepted the position of FLM at the Phoenix Tower;
3. The Training staff at the Los Angeles Center treated Complainant differently and less favorably than other trainees and made the training "unpassable" to prevent him from assuming his role as FLM at the Los Angeles Center;
4. Management at the Los Angeles Center spread an unfounded rumor that Complainant was only there to obtain a salary increase, and would return to the Phoenix Tower;
5. The Training Manager/Administrator ("TM") at the Los Angeles Center abused his authority when he failed to objectively score Complainant's map tests;
6. Complainant was assigned an especially difficult contract training instructor ("TI") who chastised him on a daily basis;
7. On April 6, 2015 TI unfairly failed Complainant on Problem 14;
8. After the April 6, 2015 incident, Complainant was forced to use approximately 180 hours of annual leave while management made a decision on the future of his training;
9. On April 27, 2015, management issued a decision requiring Complainant to undergo Skill Enhancement Training (SET) to "mitigate the circumstances that compromised the integrity of his training," after which, Complainant could continue his FLM training; and
10. Complainant, believing he would not be able to complete the training under the circumstances, was forced to resign from his position of FLM at the Los Angeles Center and return to Phoenix.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2) and 29 C.F.R. � 1614.106 for untimely filing of his formal complaint.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states, in relevant part, that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.106. Under � 1614.106, a formal complaint must be within fifteen (15) days of receiving notice of the right to do so. Under �1614.605(d), time frames for receipt of the notice of right to file a formal complaint are computed from the time of receipt by complainant's attorney. 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. This time limit is subject to waiver, estoppel, and equitable tolling pursuant to �1614.604(c).
The agency has the burden of proving that the complainant received the notice and that the notice clearly informed the complainant of the 15-day filing time frame. See Paoletti v. United States Postal Serv., EEOC Request No. 05950259 (Aug. 17, 1995); Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) However, complainants have a duty to apprize the agency of address changes and other circumstances that may affect the processing of EEO complaints. See Reinbold v. United States Postal Serv., EEOC Appeal No. 0120050087 (Feb. 3, 2005) EEO-MD-110, Ch. 2 Pre-Complaint Processing, (EEOC 2015)
The record supports a finding that on June 15, 2015, the Notice was received at Complainant's address of record in Rosemond, California. There is no indication that Complainant notified the Agency's EEO office that he retained legal counsel or that on June 14, 2015, he would move from his address of record to Chandler, Arizona. Therefore, we find Complainant had constructive knowledge of the Notice as of June 15, 2015, the date it was delivered to his address of record. Based on constructive receipt, Complainant's deadline to file his formal complaint would have been June 30, 2015.
Complainant argues that the filing period commenced on June 22, 2015, the date he physically received the Notice, which was forwarded by the recipient at his address in Rosemond, California. It is undisputed that the Notice included information on the 15-day filing deadline; but Complainant emailed his EEO Counselor seeking clarification on how to determine the start date (date of receipt) of the 15-day filing period. On June 23, 2015, his EEO Counselor responded, "[y]ou have 15 days from the time you receive the paperwork to file the complaint." Complainant acted in reliance on this explanation when he based his 15-day filing period on the date he physically received the Notice, June 22, 2015. As a result, Complainant missed the filing deadline based on his constructive receipt of the Notice, which was June 29, 2015. Complainant, via his attorney, filed his formal complaint on July 7, 2015, which, based on a receipt date of June 22, 2015 was timely pursuant to 29 C.F.R. �1614.106.
Based on the unique facts of this case, the Commission determines that it is appropriate to reverse the Agency's dismissal and remand the complaint for further processing. 29 C.F.R. � 1614.604(c) provides that the time limitations provided for in the EEO complaint processing regulations are subject to waiver, estoppel and equitable tolling. Under this authority, we find that this is an appropriate case to excuse complainant's failure to timely file his formal complaint. In reaching this decision, we have considered that Complainant missed the opportunity to file by June 30, 2015 based on his reliance on the Agency's explanation of the filing period. Therefore, the Agency is precluded from dismissing Complainant's complaint for failing to file his formal complaint by June 30, 2015.
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED.
The complaint is hereby REMANDED to the Agency 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 CF.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 becoraes final. The Agency shall issue to Compiainanl 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 requesis a final decision withoui a hearing, the Agency shall issue a final decision within sixty
(60) days of receipt of Complainant's request.
A copy oflhe Agency's letter of acknowledgment to Complainant and a copy oflhe nofice 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, 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
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, Director
Office of Federal Operations
April 14, 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 The Agency specified that Complainant brought additional claims which it did not include in its final decision.
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