0120181428
07-26-2018
Torie A,1 Complainant, v. Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Torie A,1
Complainant,
v.
Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120181428
Agency No. 4Y1L1800123
DECISION
On March 22, 2018, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated February 12, 2018, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for employment with a staffing firm to serve the Agency as a Licensed Practical Nurse (LPN) at its Family Clinic, Fairchild Air Force Base in Washington state.
On January 24, 2018, Complainant filed an equal employment opportunity (EEO) complaint which she signed that contained contact information for herself and representative, but no allegations of discrimination on any basis. However, other documentation in the record reflects that she was alleging that she was discriminated against based on reprisal for prior EEO activity with her former employer - the Department of Veterans Affairs (under the Rehabilitation Act)2 when the staffing firm withdrew its offer to her at the Agency's request to work for the staffing firm serving the Agency as an LPN.
The Agency dismissed the complaint for failure to timely file the complaint and failure to state a claim. On timeliness, the Agency reasoned that Complainant did not file her complaint within the 15-day time limit set out in the notice of right to file a complaint. On failure to state a claim, the Agency reasoned that Complainant's complaint contained no claims, and it was the staffing firm that acted against Complainant, not the Agency.
By email on October 27, 2017, Complainant initiated contact with the Agency's EEO office. Therein, she gave her "address of record" - an address in Washington state, and the name and address of her representative, who is not an attorney. She asked that all EEO correspondence be sent to her representative, with copies to her, and any questions be directed to her representative. Thereafter, by email on October 31, 2017, an EEO counselor got in touch with Complainant and her representative asking if it was possible for Complainant to come to the EEO office for intake, advised she could designate a representative there, and the counselor would then be happy to forward all correspondence to the representative.
By email response to the EEO counselor on November 4, 2017, the representative asked for available dates and times for her to call the EEO counselor, and requested the counselor to send all "official EEO correspondence" to her address of record with copies to Complainant's address of record. In support thereof, she cited 29 C.F.R. � 1614.605(a) & (d).
After unsuccessful efforts to get in touch with Complainant's representative by telephone, by email to the representative, with a copy to Complainant, the EEO counselor requested and demanded that Complainant provide information about her claim. Part of the copy of the email has the wording "Certified copies to:" but is cut off after that. In a November 18, 2017, email reply, Complainant's representative provided some limited information. The representative advised that Complainant does not consent to receiving time sensitive EEO correspondence by email because she is in transit status and does not regularly monitor email. The representative renewed the request that all official EEO correspondence be sent to her address of record with copies to Complainant's address of record.
Thereafter, by email on November 27, 2017, the Agency sent to Complainant's representative, with a copy to Complainant, the Notice of Right to File a Discrimination Complaint. Therein, the Agency notified them that Complainant's complaint must be filed within 15 calendar days after receipt of the Notice, gave the address for doing so, and advised that correspondence it previously sent to Complainant's address was returned. The Agency also by certified mail to Complainant's representative, with a certified copy to Complainant, sent the referenced Notice.
The certified letter to Complainant was metered as being sent on November 29, 2017. It was
returned to the Agency with the label message "... 0012/03/17 RETURN TO
SENDER ATTEMPTED - NOT KNOWN UNABLE TO FORWARD." A signed postal return receipt reflects that Complainant's representative received the Notice on December 7, 2017.
On January 1, 2018, Complainant emailed the EEO counselor that her representative advised her that she received Complainant's Notice of Right to File a Discrimination Complaint, and she did not receive the Notice at her address of record in Washington state. She added that her address of record was the address of a friend, and the Notice may have been returned because her friend was on vacation. Complainant wrote that as advised by her representative, Complainant is in transient state status, requested that the EEO counselor mail the Notice to her to an address is Utah, and reminded the Agency that she does not have regular access to a computer nor regularly monitors her email.
On January 5, 2018, the EEO counselor replied to Complainant, with a copy to her representative, that by certified mail the same day she resent a "copy" of the Notice, attached the tracking number, and advised her that for timeliness purposes, the Agency would compute from the date her representative received the Notice on December 7, 2017. Complainant received this certified mailing on January 9, 2018, and filed her complaint on January 24, 2018.
Thereafter, the Agency issued its FAD dismissing Complainant's complaint. The instant appeal followed.
Complainant argues, through her representative, that since her representative is not an attorney, the time limit to file the EEO complaint runs from the date Complainant received the Notice of Right to File a Discrimination Complaint. Complainant also argues that the complaint states a claim because she provided information in response to the Agency's request for information on her claim.
In opposition to the appeal, the Agency argues that its FAD should be affirmed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) requires, in pertinent part, that an agency dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106(b). This regulation requires the filing of a formal complaint within 15 days of receiving the notice of the right to do so.
EEOC Regulation 29 C.F.R. � 1614.605(d) provides as follows. Unless the complainant states otherwise in writing, after the agency has received written notice of the name, address and telephone number of a representative for the complainant, all official correspondence shall be with the representative with copies to the complainant. When the complainant designates an attorney as representative, service of all official correspondence shall be made on the attorney and the complainant, but time frames for receipt of materials shall be computed from the time of receipt by the attorney.
Nevertheless, we find that the actions of Complainant, in tandem with her representative, made the representative's address Complainant's de facto address of record for purposes of timeliness. From her first contact with the Agency, Complainant instructed it to mail all correspondence to her representative, with mail copies to her, directed that all inquiries be directed to her representative, and for the most part made herself unavailable for contact by the Agency. Two weeks later, on November 18, 2017, the representative reiterated the mailing instructions to the Agency, and advised it not to use Complainant's email for time sensitive EEO correspondence because Complainant was in transit status and did not regularly monitor her email. Two day before mailing on November 29, 2017, by certified mail a copy of the Notice of Right to File a Discrimination Complaint to Complainant's address of record, the Agency emailed the Notice to her representative, with a copy to Complainant, with the advice that letters it mailed Complainant were being returned to the Agency. The subsequent mailed copy of the Notice to Complainant's address of record was returned to the Agency with the label "...ATTEMPTED - NOT KNOWN UNABLE TO FORWARD." The representative received her mailed copy of the Notice of December 7, 2017. Complainant did not file her complaint until January 24, 2018, after contacting the Agency on January 1, 2018, reminding it that she was in transient status, advising that her representative received the Notice, and asking the Agency to send the Notice to her new address, which she then provided. These communications and actions, taken together, show it is proper to treat Complainant's representative address as Complainant's de facto official address. Given this, we find that Complainant failed to timely file her complaint after receipt by her representative of the Notice on December 7, 2017. We add that the equities further weigh against Complainant. Her sending an email to the Agency on January 1, 2018, shows she had access to her email account that day, and hence access to the Notice.
As we have found that Complainant failed to timely file her complaint, we need not address the Agency's other reasons for dismissal.
The FAD 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. 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
July 26, 2018
__________________
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 Complainant did not identify which statute her prior EEO activity was under. Records uploaded by the Department of Veterans Affairs after a hearing request show the statute was the Rehabilitation Act.
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