0120161213
05-13-2016
Kasi J.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kasi J.,1
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120161213
Agency No. ARRILEY15OCT04036
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated February 5, 2016, dismissing a formal 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 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 as a Human Resources Specialist (Employee Benefit) at the Agency's Army Benefits Center-Civilian in Fort Riley, Kansas.
On January 27, 2016, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency subjected her to discrimination on the bases of disability and in reprisal for prior EEO activity when:
a. on an unspecified date, her supervisor impeded her work performance by tampering with her work product to make it appear incorrect, applying different standards for approval of retirements, and/or delaying their approval of retirements;
b. on or about September 19, 2015, her first line supervisor and team lead suspended her for ten days;
c. on an unspecified date, her supervisors changed a shift schedule for another employee but not for her;
d. on an unspecified date, her supervisors denied her request to be issued a new computer;
e. on an unspecified date, her supervisors selectively enforced policies and procedures on dress code and sick leave; and
f. on an unspecified date, her supervisors allowed two co-workers to move to the shift she wants but denied her requests to move shifts.
In its February 5, 2016 final decision, the Agency dismissed claim b, pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds that it was untimely filed. The Agency found that while a Notice of Right to File a Discrimination Complaint (hereinafter referred to as "Notice") was delivered to Complainant's attorney's address of record on November 25, 2015, Complainant's copy was returned to the Agency undelivered. The Notice notified Complainant's attorney that a formal complaint had to be filed within fifteen days of receipt of the Notice. However, the Agency found that Complainant waited until January 27, 2016, to file her formal complaint, which it found to be beyond the requisite fifteen days from the date of the receipt of the Notice.
Further, the Agency dismissed claims a and c - f on the grounds that these claims had not been raised with an EEO Counselor and that they are not like and related to matters for which Complainant underwent EEO counseling, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency also dismissed claims a and c - f on the alternative grounds of stating the same claims that were raised in four prior EEO complaints, pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the Agency found that instant formal complaint raises the same matter in Agency Case Nos. ARRILEY15JUL02673, ARRILEY14SEP03835, ARRILEY14JAN00248, and ARRILEY13NOV04022.
This appeal followed. Complainant makes no new arguments on appeal
In response, the Agency confines its arguments to the issue of dismissal on the grounds that the formal complaint, in its entirety (and not solely claim b), was untimely filed. The Agency notes that while Complainant's attorney received the Notice on November 25, 2015, Complainant's Notice was returned undelivered. The Agency states when Complainant submitted her complaint in person, she indicated her untimely submission was due to an apparent approval of an extension of time. The Agency argues, however, the only extension of time granted with respect to the instant complaint was for the completion of the pre-complaint counseling due to efforts to get her and her attorney together to be issued the Notice which resulted in the EEO office mailing to them through certified mail.
Moreover, the Agency argues that Complainant's misapplication of the extension does not justify her late filing of the instant complaint since she had engaged in prior protected activity.
ANALYSIS AND FINDINGS
As a preliminary matter, we will address the issue of whether the formal complaint, encompassing all the identified claims, was timely filed. We therefore will not address various alternative dismissal grounds.
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 notice of the right to do so.
Based on a thorough review of the record and consideration of the arguments on appeal, we determine that the Agency dismissal, due to the untimely filing of the formal complaint, was proper, based on the following documentation relating to transmission of the Notice. Specifically, the record contains a United Postal Service Signature Confirmation Receipt (receipt). In the receipt, Complainant's attorney's street and city address of record are identified and was signed by an associate of his law firm. The receipt also includes a tracking number which indicated that delivery was made on November 25, 2015.
As the record establishes that the Notice was received on November 25, 2015, Complainant's formal complaint, filed on January 27, 2016, was more than fifteen days after the limitation period set forth in the regulations. Complainant has not presented adequate justification for extending the limitation period beyond fifteen days.
The Agency's final decision to dismiss the formal complaint on the grounds of untimely filing is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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. If you file a request to reconsider and also file a civil action, 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
May 13, 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.
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