closed0120123036
12-20-2012
Kelly Hauhn, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Kelly Hauhn,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120123036
Agency No. FAS-2012-00289
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated June 22, 2012, 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 Agriculture Marketing Specialist at the Agency's facility in Washington, DC. Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex, disability, and in reprisal for prior protected EEO activity.
In its June 22, 2012 final Agency decision, the Agency determined that Complainant's formal complaint was comprised of the following claims:
1) On January 3, 2012, her request for telework as a reasonable accommodation was denied;
2) On November 6, 2011, she was moved to a work space which constructively eliminated her previously granted reasonable accommodations;
3) In October 2011, she was issued a lower performance rating of "superior" resulting in a reduced performance award in December 2011; and
4) Since March 2006, management frequently failed to provide her adequate accommodations or took actions which undermined or interfered with those granted to her.
The Agency dismissed Complainant's formal complaint on the grounds that it was untimely filed. The Agency found that the Notice of Right to file was received by Complainant's attorney on March 29, 2012. The Agency noted that it was mailed in an envelope bearing a private postage meter stamp dated March 29, 2012, but that it had no official postmark. The Agency further asserted that:
in order to meet the time limit here, the subject formal complaint must have been filed on or before April 13, 2012. If March 29, 2012, is acknowledged as the mailing date, a timeliness concern is raised due to Complainant's signing of her formal EEO complaint on April 13, 2012. The accuracy of the private postage meter stamp date is negated by the signature date on the subject complaint itself-the document would have had to have been mailed out 15 days prior to its execution. As such, we cannot accept March 29, 2012, as the actual mailing date. Assuming then, that the complaint was mailed out within the required time period, i.e. on or before April 13, 2012, it would be considered timely if received on or by April 18, 2012. However, the mailing was not received until May 3, 2012, 15 days beyond the regulatory limit.
Regarding, claim (3) and the lowered performance rating in October 2011, the Agency dismissed this matter on the alternate grounds of untimely EEO Counselor contact.
The instant appeal followed.
ANALYSIS AND FINDINGS
The Agency improperly dismissed Complainant's formal complaint on the grounds it was untimely filed. 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 shall dismiss a complaint that fails to comply with the applicable time limits contained in �� 1614.105, 1614.106, and 1614.204(c), unless the agency extends the time limits in accordance with � 1614.604(c).
The record in this case indicates that complainant's attorney received the notice of the right to file a formal discrimination complaint on March 29, 2012. The envelope containing Complainant's formal complaint contained a date stamp from a private postage meter dated March 29, 2012. The Agency asserts that this mailing date must be inaccurate because Complainant's formal complaint was dated April 13, 2012. However, we disagree. Complainant's attorney, in her brief in support of Complainant's appeal, asserts the following chronology of events:
[b]ecause Complainant's counsel had a long meeting scheduled for later that day and did not expect to complete preparation of the formal complaint on that day, she dated the documents April 13, 2012, which was the deadline for filing the complaint. However, the meeting scheduled for that day was canceled and Complainant's counsel was, unexpectedly, able to finish preparation of the complaint and file it, by first class mail, that same day. Complainant's counsel acknowledges that, in her haste, she neglected [to] change the date on the formal complaint from April 13, 2012 to the actual date March 29, 2012, prior to filing the complaint.
We further note that the Commission has held that a private postage meter strip is an acceptable postmark in the absence of other proof of date of mailing. See Rubin v. U.S. Postal Serv., EEOC Request No. 05890783 (Sept. 28, 1989) (finding that the private meter stamp (which was dated within the filing period) used by Complainant was an acceptable form of a postmark and reversed the Agency's final decision dismissing the complaint as untimely filed, even though the Agency alleged that it received the formal complaint outside the filing period). In the instant matter, the envelope did not bear a United States Postal Service postmark.
The Agency asserts that we should not accept the private meter postmark pursuant to Stevenson v. Dep't of the Air Force, EEOC Appeal No. 01A50453 (Mar. 23, 2005) (affirming Agency's dismissal for untimely filing of the formal complaint when envelope contained a private postage meter date stamp which was prior to the time limit but the complaint was received more than five days past the expiration of the filing period). However, we disagree. We noted in Stevenson that there was not adequate justification to warrant an extension of the time limit; however, in the instant matter we find that Complainant's attorney expressly set forth that she mailed the complaint on March 29, 2012, and provided an explanation, as set forth above, as to why Complainant's formal complaint was dated April 13, 2012. Based on the foregoing, we find that Complainant timely filed her formal complaint on March 29, 2012, within the applicable time limit.
We further find that the Agency improperly dismissed claim (3) pertaining to Complainant's performance rating in October 2011. The record reflects that the Agency improperly fragmented Complainant's complaint. Complainant is alleging that the she has been subjected to harassment comprising multiple incidents. The Commission has held that "[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence." EEOC Compliance Manual, Section 2, Threshold Issues at 2-75 (revised July 21, 2005) (citing National Railroad Passenger Corp v. Morgan , 536 U.S. 101, 117 (2002). The record reflects that at least one incident occurred within the 45-day time period preceding Complainant's January 4, 2012 EEO Counselor contact; thus, the Agency improperly dismissed incident (3) for untimely EEO Counselor contact.
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. 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
December 20, 2012
Date
2
01-2012-3036
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120123036