[Redacted], Inge C., 1 Complainant,v.John Roth, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Feb 9, 2021

Appeal No. 2020005459 (E.E.O.C. Feb. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Inge C.,1 Complainant, v. John Roth, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2020005459 Agency No. 4L0J20000622L20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated August 14, 2020, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked for the Agency as a Management Assistant, GS-7, in Altus, Oklahoma. Complainant filed a formal equal employment opportunity (EEO) complaint, dated April 1, 2020, alleging the Agency subjected her to hostile work environment harassment on the bases of sex (female) and reprisal for prior protected EEO activity (prior 2019 grievances) when, on December 19, 2019, Complainant’s manager issued her a letter of counseling. On March 18, 2020, an EEO Counselor (EC1) emailed Complainant (at her Agency email address2) informing her of the conclusion of the pre-complaint process/final interview and 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 The record shows, on April 2, 2020, Complainant forwarded EC1’s email from her work email address to her personal email address of record. 2020005459 2 providing a Notice of the Right to File a formal EEO complaint (NORF). The NORF stated, “If you file a complaint, it must be in writing, signed, and filed within fifteen (15) calendar days after receipt of this notice.” EC1 stated, in his accompanying email, “from receipt of this email, you will have 15 days to decide if you would like to file a formal complaint if you are not happy with the results of this informal complaint.” On April 2, 2020, Complainant emailed EC1 stating, “I am on [administrative leave], until the end of the month, I can see my email but I cannot access any [for official use only] items.” Complainant stated that EC1 could call her if he had any questions and to please verify receipt of her email. Subsequently, in an email dated May 4, 2020, to EC1 and an EEO Specialist (EC2), Complainant stated “Here is the information,” and attached her formal complaint. The Agency issued a final decision dismissing Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(2) for an untimely formal EEO complaint. The Agency stated that Complainant acknowledged receipt of the NORF on April 2, 2020, but did not file her complaint until May 4, 2020. The instant appeal from Complainant followed. Complainant stated, on April 2, she emailed her formal EEO complaint form to EC1 because, due to the COVID-19 pandemic, she was on administrative leave and the office was not accepting walk-in traffic. Complainant stated, when she did not receive a response from EC1, on May 4, 2020, she sent a follow-up email to EC2. Complainant stated that the formal complaint is dated April 1, 2020, was filed on April 2, 2020, and is timely. In its response to the appeal, the Agency argues that Complainant failed to show that she filed her formal complaint on April 2. The Agency stated that the record shows that Complainant informed the Agency she was on administrative leave and could not access “for official use only” documents, but she received the NORF. The Agency stated that Complainant forwarded the NORF email to her personal email address on April 2. It reiterated that Complainant did not file her formal complaint until May 4. 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 that 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 days of receiving notice of the right to do so. The Commission has held that the agency bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness. The evidence of record reflects that the Agency's Notice was delivered to Complainant's work email address on March 18, 2020. The record shows Complainant received the email as she sent the Agency email from her work email to her personal email address on the same day. 2020005459 3 The body of the Agency’s email and the attached NORF informed Complainant that she had 15 days from receipt of the Notice to file a formal complaint if she was unhappy with the results of the pre-complaint. The record shows, on April 2, 2020, Complainant emailed the EEO Counselor, EC1, acknowledging receipt of the emailed NORF. On appeal, Complainant stated, on April 2, she emailed her formal EEO complaint form to EC1 because, due to the pandemic, she was on administrative leave and the office was not accepting walk-in traffic. Complainant stated, when she did not receive a response from EC1, on May 4, 2020, she sent a follow-up email to EC2. Complainant stated that the formal complaint is dated April 1, 2020, was filed on April 2, 2020, and is timely. The Agency opposed Complainant’s appeal, arguing Complainant failed to show that she filed her formal complaint on April 2. The record does not support Complainant's contention that she filed her formal complaint on April 2, 2020. Nor does it show that she expressed an interest in filing formally on April 2, 2020 although the Agency informed Complainant of the 15-day statutory timeframe in the NORF and the body of the email of March 18. The record shows that Complainant contacted the Agency via email again on May 4, 2020 and the Agency stated May 4 is the date she submitted her formal complaint. The record supports the Agency’s determination regarding timeliness. Upon review, we find that the Agency properly dismissed the instant formal complaint as untimely filed pursuant to EEOC Regulation 29 C.F.R. § 1614.107(a)(2). CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). 2020005459 4 Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020005459 5 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 February 9, 2021 Date