Wanita Z,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Aug 9, 2019

2019003099 (E.E.O.C. Aug. 9, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Wanita Z,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 2019003099

Agency No. 19-00024-00464

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency's final decision dated March 28, 2019, dismissing a formal
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. 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 for the Agency as an Environmental Specialist
in Washington, D.C. Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination on the bases of race, national origin, sex, religion, color, age, and in reprisal
for prior protected EEO activity.

In its final decision, dated March 28, 2019, the Agency dismissed the formal complaint for
untimely EEO Counselor contact. In addition, the Agency dismissed Complainant’s complaint
on the alternate grounds that her formal complaint is untimely filed. The Agency reasoned that
Complainant’s attorney received the Notice of Right to File a Complaint (Notice) on February 7,
2019. However, Complainant did not file her formal complaint until February 26, 2019, outside
of the applicable time period.

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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The instant appeal followed.

ANALYSIS AND FINDINGS

The Agency properly dismissed Complainant’s formal complaint on the grounds it was untimely
filed. The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an
agency shall dismiss a complaint which 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.

Complainant’s attorney received the Notice on February 7, 2019 via FedEx. The record contains
a copy of the formal complaint. While the formal complaint is dated February 22, 2019, next to
Complainant’s signature, the formal complaint form indicated it was hand-delivered to the
Agency on February 26, 2019. The record contains an email dated March 13, 2019 from an
Agency EEO Specialist to Complainant’s attorney. Therein, the EEO Specialist states that the
Notice was received by Complainant’s attorney on February 7, 2019 but the formal complaint
was not filed until February 26, 2019.2 Thus, the EEO Specialist stated that the formal
complaint appears untimely and requested justification for the untimeliness.

In an email dated March 14, 2019, Complainant’s attorney responded: “[w]e sent the complaint
days earlier by email, timely. We were informed that we had put [the] information on the wrong
form (the form provided). We then provided the information on the new form provided late by
[EEO Specialist]…I also had [Complainant] personally take the completed signed form in
person.”

The EEO Specialist responded via email dated March 18, 2019 to Complainant’s attorney
stating: “[c]an you provide the date and/or email that was initially sent to the office?”
Complainant’s attorney responded on March 18, 2019 stating “Formal complaint sent February
25, 2019.”

The Notice properly informed Complainant and her attorney that the formal complaint needed to
be filed within 15 days of receipt of the Notice. The record does not contain a copy of the email
(containing the formal complaint) that Complainant’s attorney asserts was sent on February 25,
2019. However, even if were to use the date of February 25, 2019, which was the date provided
by Complainant’s attorney, Complainant’s formal complaint is still untimely filed. Complainant
needed to file her formal complaint by February 22, 2019 for it to be timely. We find that there
is not sufficient justification in the record to extend the applicable time limit.

We AFFIRM, for the reason set forth herein, the Agency’s final decision dismissing the formal
complaint.3

2 Complainant’s attorney did not contest that he received the Notice on February 7, 2019.
3 Because we affirm the Agency’s dismissal for the reason set forth herein, we need not address
the Agency’s alternate grounds for dismissal.
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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.
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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

August 9, 2019
Date