0120160376
02-03-2016
Wade K.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Wade K.,1
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120160376
Agency No. 8Z0J5024
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 27, 2015, dismissing his complaint of unlawful employment discrimination alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and 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 worked as a Medical Simulation Officer at the Agency's 59th Medical Wing at Lackland Air Force Base in Texas.
On August 18, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), national origin (Panamanian), sex (male), color (black), disability (physical and mental), and reprisal (filing a previous EEO complaint) under Title VII of the Civil Rights Act of 1964 when:
1. Since February 2014 through present, Complainant's first level supervisor (male, ethnicity and disability status unknown) ("S1"), denied him the opportunity to participate in the Alternate Work Schedule (AWS) and the Employee Physical Fitness Program (PT).
2. Since March 2014 through present, S1 required Complainant to be accountable for the equipment in simulation rooms, organization, upkeep, stocking inventory, and for any losses.
3. On August 6, 2015, S1 told him to submit 1 hour of Annual Leave to meet with his advisors.
4. On July 27, 2015 Complainant's 2nd level supervisor (female, ethnicity and disability status unknown) ("S2") issued him a Letter of Reprimand for unauthorized use of a government computer and government duty time.
5. On July 14, 2015, S2 verbally admonished Complainant for taking a late lunch after a CPR Administrator class and asked him to teach a CPR class for another instructor.
6. On July 10, 2015, S2 told Complainant that she felt "intimidated" by him and made comments to the effect of, "[b]eing in your presence makes me feel afraid and makes the hairs on my neck stand up."
7. On or around June 22, 2015, Complainant received a Notice of Proposed 14 day Suspension from S1 for "[m]isuse of a government computer and government time."
8. On May 20, 2015, Complainant received his annual appraisal from S1 with ratings lower than he believed was warranted.
9. From April 1, 2014 through December 31, 2014, the Agency denied Complainant an AWS even though it had authorized him to participate in a van pool, in which he worked an additional 15 uncompensated hours per pay period for a total of 300 uncompensated hours.
10. In September 2014, during a meeting, S2 made comments to Complainant to the effect of, "[y]ou and I both know I cannot do anything to you because you are out of your probationary period" and "I can't make this place a [Center of Excellence] with some of the people I currently have working here."
11. In September 2014, Complainant learned that two of his co-workers (African American and Hispanic) were terminated, which caused him to feel concerned about his job security based on his race and national origin.
12. In July 2014, Complainant's Interim Chief ("IC") would not grant Complainant's request to attend training for Advanced Cardiac Life Support (ACLS) and Pediatric Advanced Life Support (PALS), which are required for the Commanding General's Mock Code Training Team, and sent two female employees, who did not require the training instead.
13. In June 2014, S1 awarded NP (African-American, female, disability status unknown), the position of Interim Chief instead of Complainant. When Complainant asked S1 why he was not picked for the position, S2 interjected, "Because he doesn't trust you!"
Complainant contacted an EEO counselor concerning the above-referenced claims on July 7, 2015. On July 15, 2015, Complainant retained the services of legal counsel, which he referenced twice during the precomplaint processing period in emails sent to the assigned EEO counselor, who had previously emailed him with a request for documents. Specifically, on July 17, 2015, he responded; "Since our last contact I've acquired legal representation and I am going over everything with them to ensure all information submitted to your office is correct." On July 22, 2015, Complainant further responded, "My attorney has my statement and will contact on submission of official and complete package." In this second email, Complainant copied ("cc'd") an email address which contained the name of his attorney's law firm. There is no indication on the record that the Agency asked for the contact information of Complainant's attorney.
The Agency sent Complainant's Notice of the Right to File a Formal Complaint on July 28, 2015 via certified mail. On Friday, July 31, 2015, Complainant's wife signed for the notice, confirming that it arrived at his address of record, and establishing the date of Complainant's constructive receipt of the Notice.
The Agency did not send Complainant's attorney a copy of the Notice. Instead, Complainant's Attorney learned of the Notice on Monday, August 3, 3015, the first business day after Complainant received, when Complainant brought it to him. Complainant's attorney filed the formal Complaint fifteen (15) days later on August 18, 2015.
The Agency, contending that the correct filing date was August 15, 2015, because Complainant received the Notice on July 31, 2015, dismissed Complainant's complaint in accordance with C.F.R. � 1614.107(a)(2) for untimely filing of his formal complaint. The instant appeal followed.
ANALYSIS AND FINDINGS
Under 29 C.F.R. � 1614.107(a)(2) the agency shall dismiss a complaint that fails to comply with the applicable time limits contained in �� 1614.105, 1614.106, and 1614.204(c), unless the agency extends the time limits in accordance with � 1614.604(c).
The regulation set forth at 29 C.F.R. � 1614.106, requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so. Under 29 C.F.R. � 1614.605(d), time frames for receipt of the notice of right to file a formal complaint are computed from the time of receipt by complainant's attorney. It is well established that "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." See Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120132751 (January 9, 2014) Guy v. Dep't of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request No. 05920506 (August 25, 1992)).
On appeal, Complainant argues that the filing period should be counted from August 3, 2015, the date when Complainant's attorney first received the notice of right to file. The Agency argues that it did not receive proper notice of Complainant's representation as required under C.F.R. � 1614.605(d), and therefore the filing period commenced on July 31, 2015, when Complainant received the notice.
We agree that Complainant should have provided the Agency with his attorney's address and phone number in writing, pursuant to C.F.R. � 1614.605(d). However, the Agency's argument that it was not on notice of Complainant's attorney is disingenuous. On appeal, the Agency asks how could the EEO Counselor "possibly know" she should send the Notice to Complainant's attorney. Yet the Agency acknowledges that Complainant twice informed the EEO Counselor that he had retained legal counsel over a week before she sent the Notice of Right to File. The record contains no evidence that the EEO Counselor asked Complainant for his attorney's mailing address in order to send the Notice. Considering the ease with which the Agency could have, but decided not to, obtain the information (particularly given Complainant "cc'd" his attorney's firm on one of the emails), the Agency's argument that it was not on notice is not sufficient to discount the date of Complainant's attorney's receipt of the notice.
Based on the facts of this case, we are persuaded that Monday, August 3, 2015, the date Complainant's attorney received the Notice of Right to File a Formal Complaint, triggered the filing period for the formal complaint. Thus, the filing date of August 18, 2015 is considered timely. In the alternative, under these facts, the brief delay is excused. 29 C.F.R. � 1614.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED. The complaint is hereby REMANDED to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E0610)
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 becomes final. 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 becomes final, 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.
A copy of the Agency's letter of acknowledgement to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 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 (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
February 3, 2016
__________________
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.
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