0120170218
12-21-2017
Mae P.,1 Complainant, v. Victoria A Lipnic,2 Acting Chair, Equal Employment Opportunity Commission, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
Mae P.,1
Complainant,
v.
Victoria A Lipnic,2
Acting Chair,
Equal Employment Opportunity Commission,
Agency.
Appeal No. 0120170218
Agency No. 2016-0018
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 7, 2016, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Upon review, the Commission VACATES the Agency's final decision which found that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for failure to file a timely formal complaint.
ISSUE PRESENTED
Whether the Agency properly issued a decision dismissing Complainant's informal complaint when five months had expired from the time she was notified of her right to file a formal complaint but had not yet done so.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Alternative Dispute Resolution Mediator at the Agency's Philadelphia, Pennsylvania District Office. Complainant alleged that she was subjected to continuing harassment from May 27, 2015, through March 2016, regarding the terms and conditions of her employment, based on her disability (physical and mental) and age (66). She also asserted that the Agency subjected her to reprisal for opposing discriminatory treatment.
On December 18, 2015, Complainant contacted the Agency's EEO Office. On January 7, 2016, an EEO Counselor conducted an initial interview with Complainant. Complainant elected not to participate in Agency mediation. On February 11, 2016, Complainant was issued information on her rights and responsibilities as a complainant in the federal sector complaint process. Because Complainant's concerns were not resolved during EEO counseling, on March 17, 2016, her EEO Counselor provided her and her representative, by both electronic and postal mail, a Notice of Right to File a Formal Complaint of Discrimination (Notice).
The Notice informed Complainant of her right to file a formal complaint of discrimination, and noted that the failure to do so within 15 calendar days would result in the dismissal of her complaint. Therefore, Complainant's formal complaint was due on April 1, 2016 (or 15 days after receipt of the Notice). Complainant, however, did not file a formal complaint.
On September 7, 2016, after five months with no response from Complainant, the Agency notified her that, pursuant to 29 C.F.R. � 1614.107(a)(7), Complaint No. 2016-0018 had been dismissed, her complaint file was being closed, and that there would be no further action taken on the matter. Complainant was given rights to file an appeal to the Office of Federal Operations. On October 6, 2016, she filed an appeal.
CONTENTIONS ON APPEAL
Although Complainant did not submit a brief or statement on appeal explaining why she did not file a formal complaint within the specified timeframe, she wrote the following sentence on her Notice of Appeal form: "Appeal Rights - Breach of Settlement Agreement's Confidentiality EEO Complaint #2016-0018." Complainant did not indicate what the notation referenced.
In response, the Agency, in pertinent part, contends that the complaint was properly dismissed under 29 C.F.R. � 1614.106(a)(7) because Complainant did not file a formal complaint of discrimination with the Agency. The Agency maintains that this is not a case in which an employee filed an untimely complaint with an agency, but instead took no action. Complainant, the Agency notes, did not contact the EEO Office to explain her failure to file her formal complaint, and has not provided any evidence or argument to justify her failure to file a formal complaint.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.106(b) provides that a complaint must be filed within 15 days of receipt of the notice required by � 1614.105(d). Further, 29 C.F.R. � 1614.107(a)(2), provides, in pertinent part, that prior to a request for a hearing in a case, the Agency shall dismiss an entire complaint that fails to comply with the applicable time limits contained in � 1614.105, unless the Agency extends the time limits. However, there is no provision of our regulations requiring, or even permitting, an agency to "dismiss" a complaint that has not been formally filed.
The Commission has held that "a complainant who receives counseling on an allegation, but does not go forward with a formal complaint on that allegation is deemed to have abandoned it and consequently, cannot raise it in another complaint." Small v. U.S. Postal Serv., EEOC Request No. 05980289 (July 16, 1999). But that holding refers to matters in which a formal complaint is filed that omits one or more of the claims raised in counseling. That is not the case here. Here, Complainant was counseled on her claims and received a Notice of Right to file, but did not thereafter file a formal complaint.
By the time the Agency purported to dismiss Complainant's complaint, the 15-day regulatory time frame to file a formal complaint had long since elapsed. It was unnecessary for the Agency to issue a final decision of any kind in order to close the informal complaint file. If the Agency determined that it should advise Complainant that no further action would be taken on her informal complaint, a simple letter would have accomplished that. If Complainant thereafter were to file a formal complaint, the Agency would still have the ability to dismiss the complaint as untimely pursuant to 29 C.F.R. � 1614.107(a)(2), subject to the waiver, estoppel, and equitable tolling provisions of 29 C.F.R. � 1614.604(c).
CONCLUSION
The Agency erred in issuing a final action purporting to dismiss Complainant's complaint where no formal complaint had been filed. Accordingly, we VACATE the Agency's September 7, 2016, final decision.
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 (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
Bernadette B. Wilson
Acting Executive Officer
Executive Secretariat
___12/21/17_______________
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 In the present matter, the Equal Employment Opportunity Commission (EEOC) is both the respondent agency and the adjudicatory authority. The Commission's adjudicatory function is housed in an office that is separate and independent from those offices charged with in-house processing and resolution of discrimination complaints. For the purposes of this decision, the term "Commission" or "EEOC" is used when referring to the adjudicatory authority and the term "Agency" is used when referring to the respondent party to this action. The Acting Chair has recused herself from participation in this decision.
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