0120120406
05-16-2014
Complainant, v. Jacqueline A. Berrien, Chair, Equal Employment Opportunity Commission,1 Agency.
Complainant,
v.
Jacqueline A. Berrien,
Chair,
Equal Employment Opportunity Commission,1
Agency.
Appeal No. 0120120406
Agency No. 201133802
DECISION
On October 24, 2011, Complainant filed an appeal from the Agency's October 18, 2011 final decision, which dismissed her equal employment opportunity (EEO) complaint alleging 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. The Commission accepts the appeal, according to 29 C.F.R. � 1614.405(a).2 For the following reasons, the Commission AFFIRMS the Agency's final decision that dismissed Complainant's formal complaint on the grounds of untimely complaint filing.
ISSUES PRESENTED
1. Whether the Agency erred in dismissing the complaint for failure to timely file a formal complaint, where Complainant did not present any physical evidence of a mailing, such as a legible Certified Mail Receipt, but instead presented a copy of the formal complaint and a declaration?
2. Whether the time limit for filing the formal complaint should be extended because the Agency delayed the EEO counselor interview when it initially advised Complainant to request to amend an existing EEO complaint that was pending before an Administrative Judge?
3. Whether Complainant's initial contact with the Agency's Office of Equal Opportunity and her request to amend her pending complaint before an AJ constitute a "filing of a formal complaint in the wrong forum" and justifies extending the time limit?
BACKGROUND
On August 13, 2010, the Agency removed Complainant from her job as an Investigative Support Assistant at the Dallas District Office in Dallas, Texas. The Agency issued to Complainant a "Notice of Right to File a Complaint of Discrimination," advising her to file a formal complaint of discrimination within 15 calendar days after receipt of the notice. Complainant received the notice on May 2, 2011,3 which meant she had to file the formal complaint by May 17, 2011. But the Agency never received a formal complaint from Complainant that month.
Four months passed when, on September 13, 2011, Complainant emailed the Agency to "make sure that [her EEO complaint] . . . was filed." About a week later, Complainant's attorney wrote a letter, asking when the Agency would investigate the complaint.
The Agency notified Complainant that it never received her formal complaint. In response, Complainant sent the Agency a purported copy of the formal complaint, with a signature date of "5/6/11." She also submitted a declaration, stating that she received the notice of right to file on May 2, 2011, and that she mailed the formal complaint via first-class mail on May 6, 2011. In her declaration, she described how she purchased a stamp from a clerk that morning and handed the envelope to that clerk for mailing. In hindsight, she regretted not sending the formal complaint by certified mail to try to save money.
Final Agency Decision
On October 18, 2011, the Agency issued a final decision, dismissing the complaint because Complainant did not timely file a formal complaint within 15 days of receiving the notice of right to file on May 2, 2011.
The Agency determined that Complainant failed to provide documentary proof that she mailed the formal complaint on May 6, 2011, such as a certificate of mailing, confirmation number, or sales receipt.
Additionally, the Agency found no equitable reasons to extend, or "toll," the 15-day filing period. The Agency reasoned that it had properly notified Complainant of her right to file a formal complaint: the notice was properly delivered to Complainant, and it properly informed her of the correct deadline for filing the complaint. Because the Agency did not mishandle the mailing of the notice of right to file a formal complaint, it found no equitable reason for extending the deadline for filing the formal complaint.
While the Office of Equal Opportunity may have initially erred in referring Complainant to the AJ to amend her pending complaint to include a mixed-case issue, the Agency explained that this error affected only the 45-day time limitation for initiating EEO counselor contact (which it properly extended), not the 15-day time limitation for filing a formal EEO complaint.
Complainant appealed the dismissal of her complaint.
CONTENTIONS ON APPEAL
Complainant contends that she provided sufficiently detailed evidence to show that she timely mailed her formal complaint on May 6, 2011, by submitting a copy of the formal complaint with a "5/6/11" signature date, and her declaration. But even if such evidence does not sufficiently establish that she actually mailed the formal complaint on May 6, 2011, Complainant maintains that the filing deadline should be extended because the Agency had initially mishandled the processing of her complaint by directing her to an AJ, who did not have jurisdiction to hear her removal claim.
In addition, Complainant maintains that her initial contact with the Office of Equal Opportunity in August and September 2010 regarding her removal constitutes a timely "filing" of a mixed-case complaint, albeit in the wrong forum, according to the "underlying principles" of 5 U.S.C. � 7702(f). That provision states:
In any case in which an employee is required to file any action, appeal, or petition under this section and the employee timely files the action, appeal, or petition with an agency other than the agency with which the action, appeal, or petition is to be filed, the employee shall be treated as having timely filed the action, appeal, or petition as of the date it is filed with the proper agency.
Although acknowledging that this case does not involve an erroneous filing with another federal agency, Complainant argues that the "underlying principles" of the statute suggest that her initial contact with the Office of Equal Opportunity constitutes a timely "filing" of a mixed-case complaint, "regardless of whether or not any complaint form was subsequently submitted by Complainant."
ANALYSIS AND FINDINGS
The Commission reviews de novo an agency's final decision that is issued without a hearing under 29 C.F.R. � 1614.110(b). 29 C.F.R. � 1614.405(a).
"The de novo standard requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker. . . . The Commission will review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . will issue its decision based on the Commission's own assessment of the record and its interpretation of the law." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-15 (Nov. 9, 1999).
Upon review, we are not persuaded by Complainant's evidence that she mailed the formal complaint on May 6, 2011. Complainant only submitted a declaration and a copy of a formal complaint, without any physical evidence of a mailing, such as a legible Certified Mail Receipt, or even a sales receipt to show that she purchased a stamp on that date. Therefore, we find that Complainant did not establish that she timely mailed her formal complaint by May 17, 2011. See, e.g., Griner v. U.S. Postal Serv., EEOC Appeal No. 01A50036 (Dec. 17, 2004) (dismissing a complaint as untimely filed, where the complainant's attorney acknowledged receiving the notice of right to file a formal complaint and only submitted as evidence a copy of the formal complaint and a sworn statement, stating he mailed the complaint on a certain date); compare Pellegrini v. Dep't of Veterans Affairs, EEOC Appeal No. 0120111386 (Sept. 1, 2011) (finding that the complainant timely field the formal complaint, because the complainant submitted physical evidence of a timely filing via a legible Certified Mail Receipt with the proper date and address, as well as declarations from several credible people).
Equitable Tolling
Upon review, we determine that Complainant has not presented adequate evidence or arguments to justify extending the 15-day time limit for filing a formal complaint. What happened before the Agency mailed the notice of right to file a formal complaint is not relevant for justifying her subsequent failure to mail her formal complaint within 15 days of receiving proper notice.
Nor do we subscribe to Complainant's argument that the filing time limit should be extended because she "filed" a mixed-case complaint in the wrong forum when she initially contacted the Office of Equal Opportunity in August and September 2010 and requested to amend her pending complaint before an AJ. We find 5 U.S.C. � 7702(f) to be inapplicable here because Complainant's actions (initiating contact with the Office of Equal Opportunity and requesting to amend a pending complaint before an AJ) did not constitute a "filing" of a formal complaint. We are not aware of, and Complainant has not presented, any case law to support the proposition that initiating EEO counselor contact or requesting to amend an existing complaint constitute a filing of a formal complaint. Nor has Complainant cited any instance in which a claim has immediately proceeded to the investigative stage after an AJ denied a complainant's request to amend an existing complaint to include that claim. Because Complainant has not presented an adequate argument that she filed her formal complaint in the wrong forum, we conclude that equitable tolling is not warranted in this case.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision, dismissing this complaint for failing to timely file a formal complaint within 15-days of receiving the notice of right to file.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). 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 (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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Bernadette B. Wilson
Acting Executive Officer
Executive Secretariat
_5/16/14_________________
Date
1 Here, the U.S. Equal Employment Opportunity Commission is both the respondent agency and the adjudicatory authority. The Commission's adjudicatory function is separate and independent from those offices charged with the in-house processing and resolution of discrimination complaints. For this decision, the term "Commission" will refer to the adjudicatory authority and the term "Agency" will refer to the respondent party in this matter. The Chair has recused herself from participating in the appellate processing of this case.
2 The record indicates that Complainant filed a civil action on this matter in the United States District Court for the Northern District of Texas, Dallas Division, but the court granted Complainant's motion to dismiss the suit without prejudice on November 22, 2011. See Civil Action No. 11-2736.
3 Initially, the Office of Equal Opportunity advised Complainant to request that the Administrative Judge (AJ) presiding over a pending complaint amend it to include the removal issue. On March 22, 2011, the AJ denied the amendment request, concluding that the removal claim was under the jurisdiction of the Merit Systems Protection Board, and should be processed as a mixed case complaint. The AJ referred Complainant back to the Office of Equal Opportunity for further processing, which then interviewed Complainant and issued a notice of right to file a formal complaint on April 21, 2011.
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0120120406
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
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0120120406