Lashawna L.,1 Complainant,v.David Bernhardt, Acting Secretary, Department of the Interior (Bureau of Indian Affairs), Agency.

Equal Employment Opportunity Commission

Aug 20, 2019

0120182504 (E.E.O.C. Aug. 20, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Lashawna L.,1
Complainant,

v.

David Bernhardt,
Acting Secretary,
Department of the Interior
(Bureau of Indian Affairs),
Agency.

Appeal No. 0120182504

Agency No. DOIBIA160242

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency’s final order dated July 23, 2018, 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. Upon review, the Commission finds that
Complainant’s complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), due to
the untimely filing of the formal complaint. Accordingly, we AFFIRM the Agency’s final order.
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Automation Clerk,
GS-0326-04/1 at the Agency’s Navajo Region facility in Farmington, New Mexico. On March 3,
2016, Complainant contacted the EEO office. She alleged that she had been discriminated against
based on her sex (female) when:

1. Beginning in late January 2016 and continuing through late February 2016, her
supervisor told her to sleep overnight at the shop where she worked.
2. On February 29, 2016, her supervisor denied her request for travel reimbursement,
interrupting her repeatedly and saying, “No travel for you, you will not get a dime,”
and “I am your supervisor, I am your boss.”

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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3. On March 3, 2016, her supervisor yelled at her, “Don’t tell me what to do, I’m the
f***ing boss, you come over here.”

4. On March 3, 2016, when she asked her supervisor if he would like donuts with his
coffee, he replied in a threatening and demeaning tone, “That would be nice.
Remember, I’m the boss.”

On March 23, 2016, B1, Complainant’s attorney, submitted to the Agency a Designation of
Representation form signed on Complainant’s behalf which clearly stated that she understood that
the time frames for receipt of correspondence and documents by Complainant would be computed
from the time of receipt by her attorney. That same day, the Agency’s EEO counselor and B1, on
behalf of Complainant, signed a Notice of Rights and Responsibilities in the Discrimination
Complaint Process.

On March 24, 2016, B1 spoke by telephone with the EEO counselor who informed her that he
mailed a notice of Complainant’s right to file a complaint (Notice) earlier that week just prior to
B1’s entry of appearance. The EEO counselor then emailed a copy of the notice to B1 that same
day. B1 characterized her receipt of the notice as a “courtesy copy,” and stated that she clarified
with the EEO counselor that the 15-day deadline would be based on Complainant’s receipt of the
Notice.

Complainant stated that she received the notice by mail on March 26, 2016. She filed her formal
complaint on April 11, 2016, or 16 (sixteen) days after she received the notice. April 10th, the
fifteenth day, was a Sunday.

After an investigation, Complainant requested a hearing before an Equal Opportunity Commission
Administrative Judge (AJ). On April 24, 2018, during the hearing process, Complainant filed a
Motion for Default Judgment. On April 25, 2018, the AJ issued an Order to Show Cause directing
the Agency to submit a statement explaining why it should not be sanctioned for failing to comply
with the Commission’s regulations. On May 2, 2018, the Agency filed a Statement in Response to
the Order to Show Cause and Cross Motion to Dismiss for Untimely Filing of Formal Complaint.
On May 11, 2018, Complainant filed a Reply.

The AJ granted the Agency’s Cross Motion to Dismiss after determining, in pertinent part, that
Complainant’s complaint was filed in an untimely manner. Upon dismissing Complainant’s
complaint, the AJ found that Complaint Motion for Default Judgement was therefore moot, and
she did not rule on it. The Agency issued a final order adopting the AJ’s decision. This appeal
followed.
CONTENTIONS ON APPEAL

On appeal, Complainant asserts that the AJ erred as a matter law when she dismissed her complaint
as untimely, reiterating that the Agency assured Complainant that the deadline to file her formal
complaint was 15 days from her receipt of the right to file paperwork in the mail, not B1’s receipt;
and that Complainant reasonably relied on the Agency’s statement regarding the deadline to file
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her formal complaint, and timely filed within that deadline. Complainant contends that the Agency
is barred by the doctrine of equitable estoppel from asserting untimeliness; and requests that the
Commission reverse the final order and remand the matter for a ruling on her Motion for Default
Judgment.

In response, the Agency reiterates its position that Complainant’s formal complaint was untimely
filed; asserts that Complainant puts forth no reason to disturb the AJ’s finding; and requests that
its final order be affirmed.

ANALYSIS AND FINDINGS

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. Pursuant to 29 C. F.R. § 1614.109(b), an Administrative
Judge is empowered to dismiss complaints for the reasons set forth in 29 C.F.R. § 1614.107(a).

The record discloses that B1 received the Notice on March 24, 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 April 11, 2016, which was beyond the
limitation period. Under Commission regulations, the computation of time frames is calculated
from the date materials are received by a complainant’s attorney. See 29 C.F.R. § 1614.605(d). In
all other cases, i.e., when a complainant proceeds pro se or is represented by a non-attorney, time
frames are calculated from the date the materials are received by the complainant.

We find that Complainant did not provide an adequate justification for extending the 15-time
limitation period in this case. Assuming, arguendo, that B1 was told that the 15-day time limitation
period would begin when Complainant received the Notice and that the copy received by B1 was
merely a “curtesy copy,” the fact remains that the form that was submitted designating B1 as
Complainant’s representative in this matter clearly states that, Complainant understood that “[t]he
time frames for receipt of correspondence and documents by [her] will be computed from the time
of receipt by my attorney.” We find it reasonable to conclude that Complainant and B1 were on
notice that there was a discrepancy between what B1 was allegedly told and what the regulations
and the designation form clearly stated. We find that those concerns should have been immediately
resolved. 29 C.F.R. § 1614.605(e) clearly provides that: “[t]he Complainant shall at all times be
responsible for proceeding with the complaint whether or not he or she has designated a
representative.”

Finally, we must address an error that both the Agency and AJ made in interpreting our regulations.
Both the AJ and the Agency maintained that if the calculation were based on Complainant’s receipt
on March 26, 2016, of the Notice that her complaint would still be untimely because it was filed
on Monday, April 11, 2016, the sixteenth day after she received it.

0120182504

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The AJ stated that:

Despite the fact that April 10, 2016 fell on a Sunday, nothing in the governing
regulations or the Notice allow for an extra day if a deadline falls on a weekend.
Instead, the Notice clearly states that the complaint must be filed within 15 calendar
days of receipt of the Notice.

We disagree. 29 C.F.R. § 1614.604 (d) provides that:

The first day counted shall be the day after the event from which the time period
begins to run and the last day of the period shall be included, unless it falls on a
Saturday, Sunday or Federal holiday, in which case the period shall be extended to
include the next business day.

Because we found that the time period began after B1, Complainant’s attorney, received the notice,
we find that the AJ and Agency’s errors were harmless.

CONCLUSION

Accordingly, the Agency’s final order dismissing Complainant’s complaint is AFFIRMED.

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.
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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 (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

August 20, 2019
Date