0120162055
08-25-2016
Colby P.,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
Colby P.,1
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120162055
Agency No. 201626655FAA03
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 2, 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 Drug Abatement Compliance & Enforcement Inspector at the Agency's Miami Field Office in Miramar, Florida.
In its May 2, 2016 decision, the Agency contended that although Complainant received EEO counseling and was issued a notice of right to file a formal complaint on March 19, 2016, he failed to file such a complaint. Therefore, the Agency, in essence, dismissed the matter, pursuant to 29 C.F.R. � 1614.107(a)(2), for failure to timely file a formal complaint.
The instant appeal followed. On appeal, Complainant submits an undated copy of his formal complaint, which he asserts he filed with the Agency. In his complaint, he alleges discrimination on the basis of reprisal2 when he was being denied the option to telework during weeks when inspections are going on. Complainant also alleged that he was being harassed because others were told not to leave Complainant alone with a new inspector, and Complainant felt his credentials and abilities were being questioned.
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 the notice of the right to do so.
The record discloses that Complainant received the notice of right to file a formal complaint on March 19, 2016. The notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt. The Agency contends that Complainant never filed his formal complaint in response to the notice.
However, the record contains a March 28, 2016 email from the Agency's EEO office to its sub-agency, with the subject "Request for EEO Counselor's Report," that states in pertinent part:
This is to notify your office that [Complainant] has filed a formal complaint of discrimination against the Department of Transportation, Federal Aviation Administration, in accordance with 29 C.F.R. Part 1614, the filing date of the complaint is March 28, 2016, which is the faxed date of the complaint.
It appears from a letter from the Agency's Departmental Office of Civil Rights, dated March 28, 2016, and addressed to Complainant, that Complainant faxed in one of the forms for filing his complaint, but may not have included the "One DOT" complaint form. The Agency, therefore, decided that the form faxed in was not sufficient to constitute a formal complaint filing and dismissed the matter.
Under the circumstances as presented in this case, we find adequate justification to excuse any delay in the filing of Complainant's formal complaint. The record is unclear as to exactly what Complainant filed on March 28, 2016, and if he filed further documents at some later date. In Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission stated that "the agency has the burden of providing evidence and/or proof to support its final decisions." See also Gens v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992). Regardless, we find that Complainant evidenced a desire to proceed with a formal complaint in a timely manner when he sent in his March 28, 2016 fax. His complaint should not be dismissed because he may have been confused about which forms needed to be submitted. Pursuant to our authority under 29 C.F.R. � 1614.604(c), we exercise our discretion in this matter to excuse any delay.
Accordingly, the Agency's dismissal decision is REVERSED and the matter is REMANDED for further processing pursuant to the following Order.
ORDER
The Agency is ordered to process the remanded claims (as defined in the complaint form submitted on appeal)3 in accordance with 29 C.F.R. � 1614.108 et seq. 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 (K0610)
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 (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 (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
August 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.
2 The formal complaint alleges discrimination based on reprisal. The EEO Counselor's report includes the additional basis of disability.
3 Complainant may amend the complaint to add the additional basis of disability, which he raised with the EEO counselor.
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