0120161726
08-11-2016
Gilda M.,1 Complainant, v. John Kerry, Secretary, Department of State, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Gilda M.,1
Complainant,
v.
John Kerry,
Secretary,
Department of State,
Agency.
Appeal No. 0120161726
Agency No. DOS-0103-16
DECISION
Complainant timely appealed to this Commission from the Agency's April 5, 2016 dismissal of 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 was Chief (GS-13) of the Agency's Transportation and Travel Management Division located in the District of Columbia.
On March 3, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), and reprisal for prior protected EEO activity (Agency No. DOS-323-15) when:2
1. Starting in September 2015, and ongoing, she experienced a marked increase in the severity of an alleged previously existing hostile work environment (See Agency No. DOS-323-15) wherein her chain of command, including the Branch Chief of Transportation Management ("C1"), first line supervisor, Branch Chief of Travel Management and Transportation Analysis ("S1"), and second line supervisor, Director of the Transportation and Travel Management Division ("S2") failed to provide her with support in her duties, excluded her from meetings, and undermined her in performance of her responsibilities;
2. Starting in or around September 2015 and ongoing, S1 has failed to act, to stop the alleged verbal attacks and harassment;
3. On September 18, 2015, she was the only manager required to provide justification documentation to terminate the employment of a contractor who was not performing, and upon receipt of the documentation, S1 and S2 took no action, undermining her efforts to address poor performance and maintain high performance;
4. On or about October 8, 2015, she learned during a phone call with a customer (i.e. not through her formal management structure) that a new billing process had been implemented for the contracts she was responsible for;
5. On October 14, 2015, management denied her request for support with a major function of the legacy payment system operation, preventing her from properly doing her job;
6. In November 2015, she was denied a Meritorious Honor Award received by other managers in her Branch; and was told by S1 that she did not receive it because she was not "strong enough;" and
7. On January 9, 2016, the application for the Executive Leadership Program she submitted on behalf of one of her subordinates was denied, even though other managers in her Branch were supported in their attempts to advance subordinates.
Complainant contacted an EEO Counselor in or around December 2015 requesting that Claims 1 through 6 be added as amendments to a pending hostile work environment complaint, which she formally filed in September 2015 (Agency No. DOS-323-15). Complainant alleges that the severity of the harassment she alleged in her initial complaint markedly increased after the precomplaint inquiry in August 2015. She further alleges that S1, S2, and C2, have continuously undermined her ability to properly perform her job since September 2015. Given the temporal proximity of the above actions to her protected EEO activity, Complainant alleges that the alleged discriminatory and harassing actions were based on retaliation for her protected EEO Activity as well as her race and sex. The Agency determined that her new claims should be brought separately as the instant complaint.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), due to the untimely filing of the formal complaint.
ANALYSIS AND FINDINGS
EEOC Regulation requires the filing of a written complaint with the agency that allegedly discriminated against the complainant within fifteen (15) calendar days after the date of receipt of the Notice of Right to File an Individual Complaint required by 29 C.F.R. �1614.105(d), (e), or (f). 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. See 29 C.F.R. �1614.604(b). This time limit is subject to waiver, estoppel, and equitable tolling. 29 C.F.R. �1614.604(c). An agency shall dismiss a complaint which is not filed within the fifteen day time period. See 29 C.F.R. �1614.107(a)(2)
In cases such as the instant complaint, where the 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 the materials shall be computed from the time of receipt by the attorney. 29 C.F.R. �1614.605(d) However, at all times, Complainant is responsible for proceeding the complaint whether or not a representative has been designated. See 29 C.F.R. �1614.605(e). We have previously found that where an agency did not serve complainant's attorney with the necessary notice, the formal complaint was timely filed. Blakemore v. Dep't of the Navy, EEOC Appeal No. 01A42421 (Aug. 5, 2004).
The record discloses that Complainant received the Notice of Right to File a Formal Complaint ("the Notice") on February 11, 2016. Although the Notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, Complainant did not file her formal complaint until March 3, 2016, which is beyond the limitation period. However, a review of the record also indicates that both the EEO Counselor assigned to Complainant's complaint and his supervisor were aware that Complainant designated an attorney to represent her in this matter prior to issuing the Notice. The Notice itself, which was signed by both Complainant and her assigned EEO Counselor, included the name, email address and phone number of her attorney of record. The EEO Counselor's Report dated February 18, 2016 also included a mailing address for Complainant's attorney of record.
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." Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992)). On appeal, Complainant's attorney of record alleges that he did not receive a copy of the Notice until after he responded to the EEO Counselor's Report with a formal complaint that he created from a generic template (as opposed to the Agency form that usually accompanies the Notice). In response, the Agency provides sufficient proof that Complainant received the Notice on February 11, 2016, but no mention of her Attorney's receipt. Based on the record, we find that the Agency failed to meet this burden. Hence Complainant timely filed her Formal Complaint through her attorney of record in accordance with our regulations.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED and the matter is hereby REMANDED 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. 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 11, 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 A review of Complainant's Formal Complaint revealed additional claims from the Agency's three claims in the Final Agency Decision. On Remand the Agency shall use the claims as they are identified in this Decision.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120161726
2
0120161726
7 0120161726