[Redacted], Keri C, 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Jun 7, 2021

Appeal No. 2021002252 (E.E.O.C. Jun. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Keri C,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2021002252 Hearing No. 510-2020-00316X Agency No. BOP-2020-0094 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final order dated January 26, 2021, dismissing a formal complaint alleging 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. BACKGROUND During the period at issue, Complainant worked as a Utility Systems Operator Repairer, WS- 4742-08, at the Agency’s Federal Correctional Institution in Tallahassee, Florida. Complainant filed a formal EEO complaint claiming the Agency discriminated against her based on her race, national origin, sex, religion, disability, age, and in reprisal for prior protected EEO activity. 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. 2021002252 2 Despite apparent concerns about the timeliness of the complaint filing, the Agency accepted the formal complaint for investigation into the allegations of discrimination. After the investigation was completed, Complainant timely requested a hearing before an EEOC Administrative Judge (AJ). Subsequently, the Agency filed a motion with the AJ to dismiss the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(2). Specifically, the Agency asserted that Complainant’s formal complaint had been untimely filed. On December 17, 2020, after receiving an opposition from Complainant and a reply from the Agency, the AJ issued a summary decision, without analysis, dismissing Complainant’s formal complaint as untimely filed. The instant appeal followed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.109(b) states, in pertinent part, that an AJ may dismiss an EEO complaint on any of the procedural grounds detailed in 29 C.F.R. § 1614.107. The regulation at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that a complaint may be dismissed if it 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. Here, the AJ dismissed the complaint as untimely filed. It is undisputed that Complainant was informed as early as October 14, 2019, in the Notice of Equal Employment Opportunity Timelines provided to her by the Agency that she had fifteen calendar days to file her formal complaint after she received the Notice of Right to File a Formal Complaint (Notice). However, it is also undisputed that the EEO Counselor provided Complainant inconsistent information regarding when the limitation period began for her to file her formal complaint. On October 24, 2019, the EEO Counselor emailed Complainant the Notice and provided the following instruction: Please find attached your notice of right to file a formal complaint and my counselor report. Please note that you will have 15 calendar days from the date you open this email to file your Complaint of Discrimination, DOJ-201A, with the EEO Officer in Washington, D.C. The address, email, and fax number are included on the attached memo [emphasis added]. Consequently, the EEO Counselor informed Complainant that the limitation period did not begin when she received the email containing the Notice. Rather, the limitation period would begin when Complainant read and opened the contents provided in the October 24, 2019 email. The record indicates that Complainant downloaded the email on October 27, 2019, but she did not obtain access or read the attached documents (including the Notice) attached to the email until October 31, 2019. Consequently, Complainant argues that she did not read the notice until October 31, 2019, and therefore had until November 15, 2019 to timely file. 2021002252 3 The record reflects that Complainant filed her formal complaint on November 13, 2019. However, she submitted her formal complaint to the EEO Counselor instead of submitting it to the EEO Washington, D.C. office. The EEO Counselor notified Complainant of the error on November 18, 2019, after the filing deadline. The record indicates that Complainant properly submitted her formal complaint to the appropriate office on November 19, 2019, one day after she had been notified of the error. We acknowledged that we have determined in prior cases that a complainant’s decision to wait to open an email containing the Notice did not warrant a waiver of the filing deadlines especially in circumstances where a complainant was aware that the Notice would be transmitted via email. See Bart M. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2020003881 (Oct. 26, 2020) (complaint opened the email containing the Notice and waited six weeks to file formal complaint); See also Jessica E. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120181534 (July 29, 2018) (complainant never opened the email containing the Notice and subsequently filed her formal complaint one month after the email was sent). In those cases, the filing limitation period began when the complainant received the email containing the Notice. Here, however, Complainant was specifically instructed by the EEO Counselor that the limitation period to file her formal complaint would not begin until after she read the contents in the email, and Complainant followed this guidance. Consequently, the instant complaint is more similar to cases where we have found justification for waiving the limitation period where a complainant relied on erroneous information from an EEO Counselor. See Theresia B. v. Dep’t of Homeland Security, EEOC Appeal No. 0120171839 (July 18, 2017) (EEO counselor informed complainant not to open email containing the Notice until she was ready because the limitation period would begin once she opened the email). Given the unique facts of the instant case, we find that it was reasonable for Complainant to rely on the instruction provided in the EEO Counselor’s email. We find that Complainant had fifteen days from the time she read the Notice on October 31, 2019, to timely file her formal complaint on or before November 15, 2019. Here, the record supports that Complainant timely filed her formal complaint on November 13, 2019. Although Complainant submitted her complaint to the wrong office, she promptly corrected her mistake the day after the EEO Counselor notified her of the error. Therefore, we find that Complainant has provided sufficient justification for waiving the applicable time limit. CONCLUSION The Agency’s order implementing the AJ’s dismissal for the formal complaint is REVERSED. The complaint is REMANDED to the Agency for further action pursuant to the following ORDER. 2021002252 4 ORDER The Agency is directed to submit a renewed request for a hearing on Complainant’s behalf, as well as a copy of the complete complaint file and this appellate decision, to the Hearings Unit of the EEOC’s Miami District Office within fifteen (15) calendar days of the date this decision is issued. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 2021002252 5 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). 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). 2021002252 6 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 (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 June 7, 2021 Date