EEOC Appeal No. 0120172654
10-11-2017
Kiera H. v. Dept. of the Air Force
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kiera H,1
Complainant,
v.
Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120172654
Agency No. 9D1S17004
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated July 18, 2017, dismissing a formal 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.
BACKGROUND
During the period at issue, Complainant worked as a Marketing Clerk at the Agency's Los Angeles Air Force Base in El Segundo, California.
In her formal complaint, Complainant alleged that the Agency subjected her to discrimination based on race, sex, color, and in reprisal for prior EEO activity.
In its final decision, the Agency dismissed the formal complaint pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds that it was untimely filed. Specifically, the Agency determined that the formal complaint was filed on April 7, 2017, which was more than fifteen days after it determined that Complainant and her attorney had received the Notice of the Right to File a Formal Complaint (Notice) on March 20, 2017. The Agency noted that Complainant's complaint was carried to the Lieutenant, Space and Missile System Center Commander (SMC)'s office. The Agency further noted that the formal complaint delivered to this office did not have USPS postmark and that it was not delivered through an official courier, leaving no way to track receipt. Moreover, the Agency stated that the formal complaint was signed by the SMC Commander's office on April 7, 2017.
The instant appeal followed. Complainant, on appeal, argues that her formal complaint was filed timely. Specifically, Complainant states "please see attached USPS certified mail receipt with a postmark date of March 30, 2017 addressed to the SMC's Commander's Office in accordance with 29 C.F.R. 1614.107(a)(2) showing that my request was filed in a timely manner. (Please see Exhibit B) The deadline to file a Formal Discrimination for [Complainant] Los Angeles AFB Docket No. 9D1S17004 was April 4, 2017 to either [EO Director SMC/EO] or [Lieutenant General], Commander SMC/CC."
In support of her assertions, Complainant submitted a copy of USPS Certified Mail Receipt with a date stamp of March 30, 2017, indicating the formal complaint was sent to the Lieutenant General, Commander's Los Angles AFB address.
In response to Complainant's appeal, the Agency stated that Complainant and her counsel received the Notice on March 20, 2017, that Complainant "mailed her formal complaint to the Space and Missile Commander's office on March 30, 2017; that the formal complaint "arrived into the installation's mailroom on April 3, 2017 (emphasis added);" and that the Commander received the formal complaint on April 7, 2017.
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.
In the instant case, we find that Complainant filed her complaint on April 3, 2017, and her complaint is therefore timely. Specifically, as noted above, in response to Complainant's appeal, the Agency stated while Complainant's mailed her complaint to the SMC Commander's office on March 30, 2017, her complaint "arrived into the installation's mailroom on April 3, 2017." The record establishes that the Notice was sent to Complainant on March 20, 2017, and that Complainant's complaint was received on April 3, 2017, which is within the fifteen-day limitation period. Therefore, the Agency's decision to dismiss the complaint on the grounds of untimely filing is improper.
The Agency's final decision to dismissing the formal complaint is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER
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 claim 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 (M0416)
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 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. The requests 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 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. 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
October 11, 2017
__________________
Date
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
0120172654
2
0120172654