Kayla M.,1 Complainant,v.Matthew P. Donovan, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Jun 2, 2020

2020002198 (E.E.O.C. Jun. 2, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kayla M.,1 Complainant, v. Matthew P. Donovan, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2020002198 Agency No. 9H1C1800360 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated December 15, 2019, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as the Sexual Assault Prevention and Response (SAPR) Program Manager, GS-12, at the Agency’s 99th Air Base Wing facility in Nellis Air Force Base, Nevada. On February 1, 2019, Complainant filed a formal complaint alleging the Agency subjected her to discrimination based on her age (54), disabilities (including traumatic brain injury, agoraphobia, Panic Disorder, Generalized Anxiety Disorder and Major Depressive Disorder) and/or in reprisal for prior protected EEO activities when: 1. Between June 2017 and 26 March 2018, Complainant’s second-level supervisor (“S2”), did not prevent the harassment from her first-level supervisor. 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 20200002198 2. On 3 April 2018, S2 delayed approving her request for a 10-day extension of time to respond to a proposed disciplinary action until the last day. 3. Between June 2017 and December 2017, Complainant’s first-level supervisor (“S1”) ignored and/or refused to acknowledge multiple requests for a reasonable accommodation. 4. On 25 September 2017, S1 issued Complainant a memorandum of record warning of leave usage as a result of Complainant incurring two unexpected medical emergencies. 5. On 4 December 2017, S1 provided Complainant a negative feedback. 6. On 21 December 2017, S1 had Complainant investigated for allegations of timecard fraud. 7. On 21 December 2017, S1 issued Complainant a Notice of Proposed 3-day Suspension without pay. 8. On 21 December 2017, S1 issued a Management Directed Detail Notice that removed Complainant from her supervisory position. 9. On 21 December 2017, S1 issued a Notice of Sick Leave Restriction to Complainant. 10. On 19 January 2018, S1 issued a Memorandum for Record rescinding the Notice of Proposed 3-day Suspension without pay pending further investigation of the matter. 11. Between June 2017 and 21 December 2017, S1 allowed Complainant’s subordinates to be disrespectful and insubordinate toward her. 12. On 27 March 2018, 1st Col issued Complainant a Notice of Proposed Removal. 13. On or around 18 April 2018, Complainant constructively resigned from her position. 14. Between 15 Apr 2018 and 30 July 2018, S1 provided Nevada State Unemployment Office the Notice of Proposed Removal. 15. On 30 July 2018, S1 discussed the proposed removal action against Complainant and stated, “Complainant resigned in lieu of” during her unemployment hearing.” 16. S1’s conduct contributed to the 11 September 2018 denial decision for Complainant’s unemployment benefits. 17. On 22 January 2018, Complainant’s administrative commander (“Admin. Lt Col”), issued a Memorandum for Record with Notification of Suspension of Access to classified 3 20200002198 information and unescorted entry to restricted areas and initiated a Security Information File (SIF). 18. On 22 Jan 2018, Admin. Lt Col denied Complainant access to her work computer to allow her to obtain documentation to support her EEO complaint. 19. Between 7 October 2016 and 22 January 2018, Admin. Lt Col failed to intervene to assist with Complainant’s multiple accommodation requests. 20. On 18 April 2018, Admin. Lt Col’s harassment and inaction contributed to Complainant’s decision to resign from her position. On December 16, 2019, the Agency dismissed Complainant’s claims in accordance with 29 CFR 1614.107 (a)(2). The Agency stated that Complainant received its notice of right to file a formal complaint on June 14, 2018. The Agency acknowledged Complainant provided documentation she had medical procedures from June 2018 through July of 20l8 in addition to follow-up medical appointments thereafter. According to the Agency, Complainant’s documentation failed to justify Complainant’s delay in filing her formal complaint until February 1, 2019. The Agency estimated Complainant had filed her formal 236 days after she had acknowledged receipt of the Agency’s notice of right to rile. The instant appeal followed. On appeal, through counsel, Complainant contended her late filing was justified. In support of her position, Complainant’s counsel argues that on June 28, 2018, the EEO Counselor had granted Complainant’s request to extend filing of her formal complaint based upon her documented medical needs for emergency hospitalization and kidney surgery. Complainant’s counsel also notes documentation provided by Complainant’s psychiatrist, reflecting Complainant’s mental incapacity to timely pursue a formal complaint during the fifteen- day limitation period, and well beyond that period. The record contains a copy of a psychiatric evaluation prepared by a physician/ professor of psychiatry at the University of Nevada-Las Vegas School of Medicine, on June 1, 2019. Therein, the physician first noted Complainant suffered from “multiple psychiatric conditions and side effects from medications throughout 2018 and the first portion of 2019. The physician noted, for example, that agoraphobia caused Complainant not only to be confined to her house, but also to a single room within her residence. He noted that the conditions made it “nearly impossible to complete tasks in a timely organized manner.” The physician further stated that Complainant suffered from an impaired memory and concentration, rendering her unable to read documents. He also stated that in his professional opinion, her conditions rendered her incapable of the ability “to complete paperwork in a timely manner.” 4 20200002198 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(b) 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 its 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). Here, the record revealed that Complainant requested an extension from the Agency to file her formal EEO complaint for medical reasons. On June 28, 2018, the Agency’s EEO Counselor responded to Complainant’s request as follows: There will not be a suspense. In essence if you were not able to file due to incapacitation/limiting health factors, once that matter is resolved and you are no longer incapacitated or dealing with the limiting health factors. you would filed immediately afterwards and provide the support documentation. So in essence your suspense would be when you are no longer incapacitated or dealing with the limiting health factor. Please let me know if you have any questions. Based upon a fair reading of the above email, we construe this email as arguably permitting Complainant to file her formal complainant at any time she was no longer dealing with limiting health factors. Given Complainant’s mental condition during the period at issue, it was reasonable for Complainant to interpret the Agency’s email as a waiver of the otherwise applicable time limit for filing a formal complaint under 29 C.F.R. § 1614.106(b). More significantly, we note the detailed report of Complainant’s psychiatrist for 2018 and the first half of 2019, as discussed above. Therein, the psychiatrist expressly indicated that Complainant’s mental capacity during this period clearly prevented Complainant from cogently pursuing the filing of a formal complaint in a timely manner. Given the specific circumstances of this case, we determine that Complainant has demonstrated that she was so mentally incapable by her psychiatric conditions so as to render her unable to make a timely filing. See Crear v. USPS, EEOC Request No. 05920700 (October 29, 1992). Based upon our comprehensive review of relevant communications between Complainant and the Agency, we exercise our discretion to equitably toll the 29 C.F.R. § 1614.106(b) fifteen-day time limitation. 5 20200002198 CONCLUSION We REVERSE the Agency’s final decision dismissing the formal complaint for the reasons discussed above. The formal complaint is REMANDED 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 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. 6 20200002198 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. 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; EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 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). 7 20200002198 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 June 2, 2020 Date