EEOC Appeal No. 0120180814
03-16-2018
Joannie V. v. Dep't of the Army
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Joannie V.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120180814
Agency No. ARLEWIS16DEC05093
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated November 30, 2017, dismissing a formal complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant worked for the Agency in the Supply Division at 404th Sustainment Command at Joint Base Lewis-McChord in Tacoma, Washington.
On May 3, 2017, asserting she had been subjected her to a hostile work environment and discrimination based on sex, disability, and in reprisal for prior protected activity, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
It is undisputed that on July 17, 2017, Complainant received and signed a Notice of Right to File an Individual Complaint of Discrimination (hereinafter referred to as "Notice"). The Notice informed Complainant that she had fifteen days from the date of receipt of the Notice in which to timely file a formal complaint. A blank formal complaint form (DA Form 2590) was enclosed in the Notice.
On November 30, 2017, the Agency issued its final decision, dismissing the formal complaint on the grounds that it was not timely filed, pursuant to 29 C.F.R. � 1614.106(b). The Agency determined that Complainant received the Notice of the right to file a formal complaint on July 17, 2017, but that she did not file her formal complaint until November 1, 2017.
The instant appeal followed.
On appeal, Complainant argues that she filed the formal complaint within 15 days of receipt of the Notice. Specifically, Complainant states that she met with the Acting EEO Director on July 17, 2017, who was serving as her EEO counselor (hereafter referred to as the "EEO Counselor"), and that during this meeting, she provided her with a hand-written timeline of discriminatory events. Complainant asserts that on July 27, 2017, she returned to the EEO office and hand-delivered her final draft of the timeline of alleged discriminatory events, which she considered her formal complaint. Complainant acknowledged that it was not filled out on a DA Form 2590, because it was her understanding that DA 2590 was an optional form.
Additionally, Complainant states that on August 17, 2017, she submitted additional documentation to the EEO office that she entitled "EEO II" and "EEO III".
Complainant concedes that in late October 2017, she submitted a completed official DA Form 2590, but states she did so at the request of the Agency. Complainant argues that the Agency erroneously determined this constituted the first submission of her formal complaint. Instead, Complainant argues that her original timeline of events was her formal complaint, and notes that the submitted DA Form 2590 references the timeline.
The Agency opposes the appeal, arguing that Complainant clearly filed the formal complaint late, and that any July 2017 submissions were insufficient to be deemed a formal complaint. The Agency argues that there is no documentation to demonstrate that any kind of formal complaint was submitted prior to the August 1, 2017 deadline.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a complaint with an appropriate agency official within 15 calendar days after the date of receipt of the notice of the right to file a formal complaint. An agency shall dismiss a complaint or a portion of a complaint that fails to comply with the 15-day time limit contained in 29 C.F.R. � 1614.107(a)(2), unless the agency extends the time limits in accordance with 29 C.F.R. � 1614.604(c).
Here, there is no dispute regarding the date Complainant received the Notice (July 17, 2017) and that her formal complaint had to be filed by August 1, 2017. The record contains a formal complaint on a DA Form 2590, signed by Complainant on October 24, 2017, and submitted by mail and postmarked October 26, 2017. It is this submission that the Agency argues was Complainant's first filing of her formal complaint, well beyond the August 1 deadline.
Complainant, on the other hand, argues that she had already filed her formal complaint before the August 1 deadline as evidenced by her submission the Timeline of Events on July 27, 2017. She further argues that she submitted "additional" supplements to this complaint in August, identified by her as "EEO II" and "EEO III." She states that she refiled on the DA Form 2590 at the request of the EEO office. Examination of Complainant's DA Form 2590 confirms that on the form where she was asked for information on when and how she was discriminated against, Complainant responded, in pertinent part: "See previously filed EEO Timeline, EEO II and EEO III."
The Agency does not dispute that Complainant came to the EEO office on July 17 and 27, 2017, but claims Complainant did not file a complaint on either date.
29 C.F.R. � 1614.604(c) provides that the time limits in the EEO complaint processing regulations are subject to waiver, estoppel and equitable tolling. Under the circumstances presented in this case, we find adequate justification for exercising our discretion under this authority to excuse any delay by Complainant in filing her "formal" EEO complaint. Through her actions, Complainant manifested a clear intent to file her formal complaint prior to the August 1 deadline. While she may have been very confused about the steps she needed to follow to do so, we are convinced that she submitted her Timeline of Events to the EEO office prior to the August 1 deadline and intended it to be considered her formal complaint. We note that in its dismissal decision, the Agency expressly used language from the Timeline to characterize Complainant's claims.
Much of the confusion in this case would have been eliminated if Complainant had used the Agency's official form when submitting her complaint. However, the Notice of right to file she received from the Agency expressly indicated that, while preferred, use of the form was not required. The subsequent form submitted once Complainant secured the services of an attorney expressly referenced the previously submitted Timeline of Events, and is asserted to have been submitted at the request of the Agency to clear up any confusion. Under these circumstances, we conclude that any delay here should be excused and Complainant's complaint should be remanded for further processing.
CONCLUSION
The Agency's final decision dismissing the formal complaint is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER (E1016)
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 was issued. 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 was issued, 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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, Director
Office of Federal Operations
January 31, 2018
__________________
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.
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0120180814