0120114030
09-11-2014
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120114030
Agency No. 200P07412011101711
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated July 6, 2011, dismissing 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.1
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contract Service Representative at the Agency's Health Administration Center in Denver, Colorado.
The record indicated that on February 1, 2011, Complainant contacted the EEO Office regarding her claim of discrimination. When the matter could not be resolved informally, the EEO Counselor provided Complainant with a Notice of Right to File a Formal Complaint (Notice) by mail on March 29, 2011. The Agency indicated that Complainant received the Notice on April 21, 2011.
The record showed that on June 15, 2011, Complainant contacted the Agency via email stating that she had mailed in her formal complaint on April 29, 2011. She was inquiring about whether the Agency had received her formal complaint. The Agency responded to Complainant's e-mail stating that it was accepting her e-mail as filing of her formal complaint.
The Agency issued a letter acknowledging the formal complaint noting that Complainant filed her formal complaint on June 15, 2011.
The Agency issued its final decision. In its decision, the Agency noted that Complainant alleged discrimination on the bases of race (African- American) and sex (female) when Complainant was subjected to a hostile work environment. In support of her claim of harassment, the Agency noted that Complainant raised the following events:
1. In January 2011, Complainant was given a verbal counseling and a written counseling.
2. On January 19, 2011, the Supervisor asked Complainant if she was going to file an Office of Workers' Compensation Programs (OWCP) claim because she fell off a chair.
3. On January 20, 2011, Complainant was charged absence without leave (AWOL) for thirty minutes.
4. In February 2011, Complainant was charged AWOL for thirty minutes.
5. On February 8, 2011, Complainant was given a written document which advised that her OWCP claims were being investigated.
6. On March 31, 2011, upon returning to work from a medical appointment, the Supervisor informed Complainant that she was not entitled to lunch and to get back on phone duty.
7. On March 21, 2011, Complainant was issued a termination letter effective April 1, 2011.
Subsequently, the Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for failing to file the formal complaint in a timely manner. The Agency noted that Complainant received the Notice on April 21, 2011, but did not file her formal complaint until June 15, 2011, well beyond the 15 calendar days.
Complainant appealed noting that she had filed her formal complaint contained in a white binder which she mailed to the Agency on April 29, 2011. She also stated that she contacted the Agency to ensure that it received the formal complaint. She provided copies of her phone records including the dates which she called the Agency's EEO Office in order to find out the whereabouts of her formal complaint. As such, she argued that she submitted the formal complaint on April 29, 2011, not June 15, 2011, as stated within the Agency's final decision.
On September 19, 2011, the Commission requested that the Agency provide the Commission with the complaint file for the instant matter. The letter warned the Agency that failure to do so may result in the Commission drawing an adverse inference. On November 2, 2011, the Agency responded to the appeal asserting that the Commission should affirm its decision to dismiss the formal compliant pursuant to 29 C.F.R. � 1614.107(a)(2). We note that the Agency failed to provide the Commission with a copy of the complaint file. As such, on July 10, 2014, the Commission issued a Notice to Show Cause requesting that the Agency provide the Commission with the complaint file. Pursuant to the Notice to Show Cause, the Agency provided the Commission the complaint file.
ANALYSIS AND FINDINGS
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 has indicated that she mailed her formal complaint on April 29, 2011, well within 15 calendar days of receipt of the Notice. She also provided her phone records to prove that she followed up with the Agency to make sure it was received. When it was clear that the mailed formal complaint had not been received, the Agency accepted Complainant's e-mail as filing her formal complaint.
In Ericson v. Dep't of the Army, EEOC Request No. 05920623 (Jan. 14, 1993), the Commission stated that "the agency has the burden of providing evidence and/or proof to support its final decisions." See also Gens v. Dep't of Defense, EEOC Request No. 05910837 (Jan. 31, 1992). Upon review of the record, we find that the Agency has failed to substantiate the basis for its final decision. See Marshall v. Dep't of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. 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 acknowledgment 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 (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 (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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 11, 2014
__________________
Date
1 We note that Complainant stated she received the Agency's final decision on July 27, 2011. She filed her appeal on August 26, 2011. As such, we find that the appeal was filed in a timely manner.
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0120114030
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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