closed0120122444
02-25-2015
Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120122444
Agency No. SF-12-0164-SSA
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated April 22, 2012, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Claims Representative at the Agency's facility in Flagstaff, Arizona.
Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the bases of race (American Indian), sex (female) and age (46) when:
1. on November 18, 2011, Complainant's supervisor ("S1") went into her cubicle and rubbed Complainant's back;1 and
2. in March 2011, S1 did not promote Complainant to a GS-11 position.
On April 22, 2012, the Agency issued a final decision dismissing the formal complaint on grounds that it was untimely filed. Specifically, the Agency found that the Notice of Right to File a Formal EEO complaint ("Notice") was received by Complainant on January 20, 2012. However, according to the Agency's final decision, Complainant did not file her formal complaint until February 9, 2012 (the postmark date),2 three days beyond the applicable 15-day limitation period. The Agency found that Complainant did not offer adequate justification for extending the time limit.
The Agency also dismissed claim (2) on the grounds that Complainant previously filed a grievance on the same matter.
The instant appeal followed.
ANALYSIS AND FINDINGS
Dismissal for Untimely Filing of a 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. 29 C.F.R. � 1614.107(a)(2) provides that the agency may dismiss a complaint that fails to comply with this time limit, unless there is a valid reason to extend the period.
Complainant does not expressly contest that she received the Notice on January 20, 2012. However, the record indicates that it is likely Complainant was confused about the process at the time she received the Notice. In an email from an Agency EEO Specialist to Complainant dated April 9, 2012, the EEO Specialist asked Complainant for an explanation regarding the untimely filing of her formal complaint. Complainant responded via email dated April 13, 2012, stating, in pertinent part, that "[t]here has been an ongoing investigation regarding this same complaint. There was a sex harassment interview scheduled for [January 26, 2012]. However, I had a death in the family...the interview was rescheduled for [February 6, 2012]." Based on the foregoing, we find that on January 20, 2012, the date the Agency asserts Complainant received the Notice, Complainant appears to have believed that she was still in the informal counseling period based on the "ongoing investigation" and her interview scheduled for February 6, 2012, as referenced above. Complainant's belief that the informal counseling period was still ongoing created justified confusion over when she needed to file her formal complaint.
Based on the specific circumstances of this case, we find, based on equitable concerns, that any brief delay by Complainant in filing her formal complaint should be excused pursuant to 29 C.F.R. � 1614.604(c).
Dismissal for Previously Filed Grievance
EEOC Regulation 29 C.F.R. � 1614.301(a) states that when a person is employed by an agency subject to 5 U.S.C. � 7121(d) and is covered by a collective bargaining agreement that permits claims of discrimination to be raised in a negotiated grievance procedure, a person wishing to file a complaint or grievance on a matter of alleged employment discrimination must elect to raise the matter under either part 1614 or the negotiated grievance procedure, but not both. An aggrieved employee who files a grievance with an agency whose negotiated agreement permits the acceptance of grievances which allege discrimination may not thereafter file a complaint on the same matter under this part 1614 irrespective of whether the agency has informed the individual of the need to elect or whether the grievance has raised an issue of discrimination.
The Agency improperly dismissed claim (2) on the grounds that Complainant previously filed a grievance on the same matter. The EEO Counselor's Report states that a grievance was filed on the same matter set forth in claim (2) in November 2011. However, the record does not contain a copy of the grievance. In addition, the record in this case does not contain a copy of the collective bargaining agreement, referenced in the Agency's final decision, that reflects that the negotiated grievance procedure permits claims of discrimination. It is the burden of the Agency to have evidence or proof in support of its final decision. See Marshall v. Dep't of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991). The Agency has not met its burden.
Finally, we note that on appeal, Complainant for the first time raises new reprisal claims. If Complainant wishes to request that the Agency amend the instant remanded complaint to include her reprisal claims, she should put the request in writing to the Agency's (SSA's) EEO Director. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 MD-110, Chap. 5, Sect. III(B) (1999).
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims 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 (M0610)
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 9-18 (November 9, 1999). 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 (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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 25, 2015
Date
1 The record reflects that in June 2011, Complainant reported to upper-level management that S1 brushed her breasts against Complainant's back. S1 was instructed to never touch Complainant again. Complainant alleges that the November 2011 incident violated this instruction.
2 We note that the postmark on the envelope is not legible on the copy provided with the record to the Commission's Office of Federal Operations. However, the envelope does contain a date stamp from the Agency that it was received on February 15, 2012.
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0120122444
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122444