Ceola K.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.

Equal Employment Opportunity Commission

Aug 23, 2019

2019003494 (E.E.O.C. Aug. 23, 2019)

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

Ceola K.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Food Safety and Inspection Service),
Agency.

Appeal No. 2019003494

Agency No. FSIS201900084

DECISION

Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or
“Commission”) from the Agency's April 12, 2019 dismissal of her 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 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 employed by the Agency as
a Human Resources Assistant, GS-07, Staffing and Classification Section 2, located in
Minneapolis, Minnesota.

On March 24, 2019, Complainant filed a formal EEO complaint alleging that the Agency
subjected her to discrimination on the bases of race (Native American), national origin (Native
American), sex (female), color (Brown), disability, and reprisal for prior protected EEO activity
when:

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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1. On February 27, 2019, Management failed to submit her Workers’
Compensation package,

2. On an unspecified date in February 2019, Management issued her a Letter of
Caution,

3. Since December 19, 2017, Management has failed to process her request for a
Reasonable Accommodation, and

4. On October 26, 2018, during her Performance Review, she was subjected to
harassment when Management informed her that she is “passing,” but her
performance should be on an “expert level.”

The Agency dismissed Complainant’s complaint as untimely, pursuant to 29 C.F.R. §
1614.107(a)(2), and 29 C.F.R. §1614.106(b).

The instant appeal followed.

ANALYSIS AND FINDINGS

Under 29 C.F.R. § 1614.107(a)(2), an 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). EEOC Regulation 29 C.F.R. §
1614.106(b) requires the filing of a written complaint with an appropriate agency official within
15 calendar days after the date of receipt of the notice of the right to file a formal complaint
(“NRF”). A complaint is deemed timely if it is received or postmarked before the expiration of
the applicable filing period, or in the absence of a legible postmark, if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. §1614.604(b).
This time limit is subject to waiver, estoppel, and equitable tolling. 29 C.F.R. §1614.604(c).

Where, as here, there is an issue of timeliness, “[a]n agency always bears the burden of obtaining
sufficient information to support a reasoned determination as to timeliness.” Guy v. Dep’t of
Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep’t of Defense,
EEOC Request No. 05920506 (Aug. 25, 1992)). In instances of untimely filing, the Agency
must not only demonstrate that the complainant received Notice, but that the Notice clearly
informed the complainant of the 15 day deadline to file. See Paoletti v. United States Postal
Serv., EEOC Request No. 05950259 (Aug. 17, 1995).

The Agency’s FAD states that the deadline for Complainant to timely file her Formal Complaint
was March 20, 2019 because “the record reflects” a receipt date of March 5, 2019, based on a
certified mail tracking number. However, the record provided to the Commission lacks both the
NRF and proof of delivery. We note that simply providing a certified mail tracking number,
without including the complainant’s address of record as the delivery address, and a signature or
electronic delivery confirmation, is insufficient evidence of receipt.
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On appeal, Complainant does not dispute that she received the NRF on or about March 5, 2019.
Rather, Complainant states that for filing purposes, the receipt date was changed to March 15,
2019, making the deadline to file March 30, 2019. She provides email evidence from March 15,
2019, establishing that after receiving the NRF, she contacted an Agency EEO Specialist and
requested an electronic copy of the formal complaint form as a reasonable accommodation for
her physical disability. The EEO Specialist provided Complainant with the requested form, and,
a read receipt. She explained in the email that “today will be when your 15 calendar day [filing
period] will begin. Please file your formal complaint with the [Agency] no later than March 30,
2019.” Believing she had additional time to file, Complainant filed her Formal Complaint on
March 24, 2019.

Upon receiving the Agency’s dismissal, Complainant notified the EEO Specialist, who followed
up with the Agency’s Office of Civil Rights. The EEO Specialist states that she provided her
notes and copies of the emails where she told Complainant the deadline to file was March 30,
2019, but based on the certified mailing receipt, the Agency maintained that March 20, 2019 was
the filing deadline.

Based on the facts of this specific case, we find Complainant timely filed her formal complaint,
and alternately, the Agency failed to meet its evidentiary burden.

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 (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. 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.

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IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
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.
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.
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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 (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.
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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 23, 2019
Date