[Redacted], Mary E., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionSep 2, 2021Appeal No. 2021002837 (E.E.O.C. Sep. 2, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mary E.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021002837 Agency No. ARFTSAM19JAN00223 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated January 15, 2021, dismissing her 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 At the time of events giving rise to this complaint, Complainant worked as a Nurse Practitioner, GS-0610-12, at the Agency’s Brooke Army Medical Center in Joint Base San Antonio Fort Sam Houston, Texas. Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), disability, age (54), and reprisal for engaging in protected EEO activity (reporting sexual harassment/seeking EEO counseling on instant complaint) when: 1. On January 24, 2019, she was terminated from her position as a Nurse Practitioner. GS- 0610-12. 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. 2021002837 2 2. On January 16, 2019, she was given a Memorandum of Record for alleged co-worker complaints dated November 2018 and September 2018. 3. On undisclosed dates, her first-level supervisor reluctantly approved disabled sick leave for Complainant’s medical appointments; called attention to her lighter schedule when she compared her workload to that of other nurse practitioners; and made off-handed comments about how Complainant needs to pull her share of the department’s workload. 4. On December 14, 2018, Complainant’s first-level supervisor and second-level supervisor did not address the drawing depicting an erect male penis found on Complainant’s exam room grease board. 5. On December 17, 2018, Complainant’s first-level supervisor and second-level supervisor did not address the drawing depicting a snowman with an erection found on Complainant’s exam room grease board. 6. On December 19, 2018, Complainant’s first-level supervisor and second-level supervisor did not address the drawing depicting a male cartoon character masturbating, which was found on Complainant’s exam room grease board. The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), due to the untimely filing of the formal complaint. In so doing, the Agency found Complainant received the Notice of Right to File a Formal Complaint of Discrimination on February 1, 2019, and was deemed to have filed her formal complaint on February 25, 2019, which was beyond the 15-day regulatory filing deadline. The instant appeal from Complainant followed. ANALYSIS AND FINDINGS 29 C.F.R. § 1614.106 provides in pertinent part that a formal complaint must be filed within fifteen (15) days of receipt of the notice of the right to file a formal complaint. An agency shall dismiss a complaint or portion of the complaint if it fails to comply with the 15-day time limit under 29 C.F.R. § 1614.107(a)(2), unless the time limit is extended in accordance with 29 C.F.R. § 1614.604(c). The instant record contains a copy of a Notice of Right to File a Formal Complaint of Discrimination (Notice) addressed to Complainant. A postal service Track and Confirm receipt (mail tracking receipt 9590 9402 3784 8032 6085 26) shows the Notice was delivered to Complainant by mail on February 1, 2019. Complainant does not dispute that she received the Notice on February 1, 2019, or that the Notice informed her that she had to file a formal complaint within 15 calendar days of the Notice’s receipt (February 1, 2019). The Agency asserts that Complainant, despite receiving correct instructions in the Notice, improperly filed her formal complaint with the EEOC’s San Antonio office by facsimile on February 25, 2019, rather than filing with the Agency as instructed. 2021002837 3 The Agency argues that even accepting the filing with the EEOC as valid, the complaint was still filed six days beyond the 15-day limitation period, which ended on February 19, 2019.2 However, Complainant, through her attorney, argues that a staff member at the law firm filed the complaint by email sent to the Agency’s EEO Officer on February 13, 2019. In support of this claim, the law firm submitted a screen shot of its Outlook email indicating its identified staff person sent an email on “Wed 2/13/2019 8:14 PM”. The email was addressed to the Agency’s EEO Officer at the email address provided in the Notice, with a courtesy copy to the EEO counselor as also directed. In the body of the email, it stated: “Attached please find the formal EEO complaint filed on behalf of our legal client, [Complainant’s name]. Attached to the email was a complaint form signed by Complainant on February 13, 2019. The Agency denies ever receiving this email. Based on this evidence and the representations of Complainant’s legal counsel, pursuant to 29 C.F.R. § 1614.604(c), we find just cause for excusing any delay in the Agency’s receipt of the complaint in this matter. Complainant has provided adequate evidence that her attorney’s office attempted to timely file the complaint to the correct Agency email address within the 15-day limitation period. For reasons unexplained by the record, it appears the Agency did not receive the email. It also appears that Complainant may have been confused by the complaint process as she also went to the EEOC San Antonio office to file a charge on the same matters. EEOC informed the Agency of the charge, and the EEO counselor emailed Complainant in March 2019 that the correct place to file a federal EEO complaint was with the Agency. While it appears that Complainant did not respond to this email, we conclude that it was more likely than not that she believed she did not need to take any further action because her legal counsel had already filed her complaint with the Agency EEO Officer. In sum, based on the particular circumstances of this case, we conclude that this complaint should not be dismissed as untimely filed. CONCLUSION The Agency's decision to dismiss the complaint is REVERSED and the complaint is REMANDED to the Agency for further processing in accordance with the following Order. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. 2 The charge of discrimination document from the EEOC shows it was signed by Complainant on February 24, 2019. The record contains a copy of a March 18, 2019 email from the Agency EEO counselor to Complainant indicating the Agency had been notified that she had filed a charge with the EEOC and instructing her that EEO complaints had to be filed with the Agency EEO office. 2021002837 4 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 was issued, 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. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. 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. 2021002837 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). 2021002837 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 September 2, 2021 Date Copy with citationCopy as parenthetical citation