Isaiah T,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Bureau of Engraving and Printing), Agency.

Equal Employment Opportunity Commission

Aug 17, 2020

2020002798 (E.E.O.C. Aug. 17, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Isaiah T,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Bureau of Engraving and Printing), Agency. Appeal No. 2020002798 Agency No. BEP-19-1466-F DECISION By Notice of Appeal postmarked March 4, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the February 4, 2020 final Agency decision concerning a formal EEO 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 a Plate Printer, Grade WE- 4454, in Washington, D.C. On September 12, 2019, believing that he had been subjected to discrimination, Complainant contacted an EEO Counselor. The parties were unable to achieve a resolution informally. The Agency determined that on January 24, 2020, Complainant filed a formal EEO Complaint alleging discrimination based on race, color and age. 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. 2 2020002798 In its final decision, the Agency dismissed the formal complaint for failure to timely file a formal complaint, pursuant to EEOC Regulation 29 C.F.R. § 1614.107(a)(2). The Agency determined that on September 19, 2019, it had hand-delivered to Complainant the notice of right to file a formal EEO complaint (notice). The Agency also stated that, on September 26, 2019, Complainant had received the notice for a second time, via email. According to the Agency, Complainant should have filed his formal complaint no later than October 4, 2019. On appeal, Complainant contends his formal complaint was timely filed. Complainant states that he had electronically submitted the formal complaint in September 2019, and that he had relied on the EEO Counselor’s telling him to be patient with the Agency’s processing of the formal complaint. Complainant stated that in January 2020, he inquired about the status of his formal complaint, that he asserted having submitted. However, the Agency denied receiving any formal complaint filed in September 2019. Therefore, Complainant re-sent his formal complaint again on January 14, 2020. Complainant stated his resubmission included proof that he had previously submitted the same formal complaint in September 2019. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint for failure to comply with the applicable time limits. EEOC Regulation 29 § C.F.R. 1614.106 requires a complainant to file a formal complaint within fifteen days of receiving notice of the right to do so. However, all EEO time limits are subject to waiver, estoppel or equitable tolling under 29 C.F.R. § 1614.604(c). We have consistently held that the Agency bears the burden to prove untimeliness in final dismissal decisions. Ericson v. Dep’t of the Army, EEOC Request No. 05920623 (Jan. 14, 1993). Especially in a procedural dismissal, the Agency always must present sufficient evidence to support its determination of untimeliness. Guy v. Dep’t of Energy, EEOC Request No. 05930703 (Jan. 4, 1994). In the instant matter, we find the Agency simply failed to carry its burden as more fully discussed below. We find significant that the Agency has not addressed a major argument raised by Complainant on appeal. Complainant expressly asserted on appeal that the formal complaint was timely filed. Specifically, Complainant argues that when he electronically submitted a formal complaint on September 25, 2019, upon inquiring into the status of his submission, an EEO Counselor had advised him to be “patient”. Upon subsequent inquiry into the status of his formal complaint submission, Complainant was informed that such a submission had never been received, thereby causing him to file a formal complaint which was identified by the Agency as January 2020. The Agency has not responded to this detailed assertion. Given the specific circumstances of this case, we exercise our discretion in deeming the instant formal complaint timely filed. 29 C.F.R. § 1614.604(c). 3 2020002798 CONCLUSION We REVERSE the Agency’s final decision dismissing the formal complaint and REMAND the formal complaint to the Agency for further processing in accordance with 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 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 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 final agency decision, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) 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. 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 Complainant and her representative. If the Agency does not comply with the Commission’s order, Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). 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. 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, 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 Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. 29 C.F.R. § 1614.409. 4 2020002798 Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if 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). 5 2020002798 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 August 17, 2020 Date