[Redacted], Kimberly H., 1 Complainant,v.Kenneth J. Braithwaite, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Sep 11, 2020

Appeal No. 2020000316 (E.E.O.C. Sep. 11, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kimberly H.,1 Complainant, v. Kenneth J. Braithwaite, Secretary, Department of the Navy, Agency. Request No. 2020001936 Appeal No. 2020000316 Hearing No. 430-2019-00340X Agency No. DON-18-58400-01150 DECISION ON REQUEST FOR RECONSIDERATION The Agency requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020000316 (December 17, 2019). For the reasons that follow, the Commission DENIES the Agency’s request for reconsideration for failure to meet the regulatory criteria. BACKGROUND On January 30, 2018, Complainant contacted the Agency’s Equal Employment Opportunity (EEO) Office to initiate counseling on her allegation of discrimination and harassment on the bases of her sex (female), disability, and in reprisal for prior protected EEO activity. On February 2, 2018, Complainant informed the Agency that she was represented by an attorney. On February 28, 2018, the EEO Counselor hand-delivered Complainant’s Notice of Right to File a Formal Complaint (NRTF), and sent a copy to Complainant’s attorney, via certified mail. On March 1, 2018, Complainant emailed a signed copy of the NRTF to the EEO Counselor and her 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. 2020001936 2 attorney. On March 6, 2018, Complainant’s attorney received the Agency’s certified-mail copy of the NRTF. On March 20, 2018, Complainant filed her EEO complaint. The Agency accepted Complainant’s complaint for investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. On May 15, 2019, the Agency filed a Motion to Dismiss, arguing that Complainant’s EEO complaint was untimely filed. Complainant opposed the motion, but on August 14, 2019, the AJ granted the Agency’s motion. The AJ determined that, in her response to the Agency’s motion, Complainant acknowledged that her attorney received her March 1, 2018, email by stating that she “inconsequentially shared the Notice with [her attorney] as a mere formality.” As such, the AJ found that the 15-day timeframe to file her formal EEO complaint began on March 1, 2018, and that Complainant’s filing on March 20, 2018, was untimely by four days. The AJ then dismissed Complainant’s complaint. On September 12, 2019, the Agency issued a final order implementing the AJ’s Order Granting the Agency’s Motion to Dismiss. Complainant filed an appeal, requesting that the Commission reverse the Agency’s final order. The Agency opposed Complainant’s appeal. The Commission found that the AJ erred in dismissing Complainant’s EEO complaint as untimely filed. Specifically, the Commission determined that the record was devoid of evidence establishing when Complainant’s attorney actually “received” the email sent by Complainant. In addition, the Commission noted that the record contained evidence showing that Complainant’s attorney received the NRTF sent by the Agency, via certified mail, on March 6, 2018. Accordingly, the filing of the formal EEO complaint on March 20, 2018, would be timely using March 6, 2018, as the trigger date to commence the relevant 15-day filing period. The Commission noted that, when there is an issue of timeliness, the Agency bore the burden of obtaining sufficient information to support a reasoned determination as to timeliness, and that it had not done so in this case. The Commission reversed the Agency’s final order implementing the AJ’s Order Granting the Agency’s Motion to Dismiss and remanded the complaint for further processing. Kimberly H. v. Dep’t of the Navy, EEOC Appeal No. 2020000316 (Dec. 17, 2019). The Agency subsequently filed the instant request for reconsideration. Complainant filed a brief opposing the Agency’s request. CONTENTIONS ON REQUEST FOR RECONSIDERATION On request for reconsideration, the Agency contends that the Commission erred when it failed to recognize that it met its burden and established a rebuttable presumption of constructive receipt by Complainant’s attorney of Complainant’s email regarding the NRTF. The Agency asserts that Complainant’s action of emailing a copy of the NRTF to her attorney superseded the Agency’s requirements of 29 C.F.R. § 1614.605(d), and that it established a rebuttable presumption of 2020001936 3 constructive receipt by her attorney. The Agency further argues that the burden shifts to Complainant to rebut this presumption. The Agency asserts that the Commission erred because “there is nothing more reasonable to determine timeliness then [sic] the Complainant’s 1 March 2018 email to her attorney.” The Agency also argues that the Commission set up a standard for a “read receipt” that was impossible to fulfill, and substantially impacts the Agency. The Agency notes that technological issues prevent it from obtaining a “read receipt” from Complainant’s personal email account. The Agency asserts that the Commission’s decision requires that it change its current practice, which allows communication via email, to one which only allows certified mailed documents, or that requires all complainants and their attorneys to enable and produce a receipt notice and read receipt for all email communications, prior to the Agency taking action on processing their complaints. The Agency requests that the Commission reconsider, and reverse, its earlier decision. Complainant counters that the Commission’s standard in timeliness cases is well-established, and that its earlier decision should be affirmed. Complainant asserts that for an agency to meet its burden to establish untimeliness, the Commission required evidence of actual receipt. Complainant argues that the Agency’s invitation to create a new standard in timeliness cases is contrary to Commission precedent and based on a misguided reading of prior cases. ANALYSIS AND FINDINGS EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request for reconsideration of the decision in Appeal No. 0120181473. The Agency argues that the Commission failed to recognize that 29 C.F.R. § 1614.605(e) clearly establishes that Complainant is responsible for proceeding with the complaint and that her action “did provide receipt” to her attorney, which started the 15-day clock to file her complaint. However, we find that a complainant is not responsible for the issuance of a NRTF. The Commission’s regulations state that the “aggrieved person shall be informed in writing by the Counselor, not later than the thirtieth day after contacting the Counselor, of the right to file a discrimination complaint.” 29 C.F.R. § 1614.105(d). In addition, when a complainant is represented by an attorney, “service of all official correspondence shall be made on the attorney and the complainant, but time frames for receipt of materials shall be computed from the time of receipt by the attorney.” 29 C.F.R. § 1614.605(d). In this case, the record shows that Complainant’s attorney received the NRTF issued by the EEO Counselor, via certified mailed, on March 6, 2018. The time limit for filing the complaint began when the NRTF was received by Complainant’s attorney from the Agency. As such, we find that 2020001936 4 the Commission’s initial decision correctly determined that Complainant’s complaint was timely filed within 15 days of March 6, 2018. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 2020000316 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order set forth below. ORDER Within 30 calendar days of the date this decision is issued, the Agency shall submit a renewed request for a hearing to the Hearings Unit of the EEOC’s Charlotte District Office, along with a copy of the complete complaint file and a copy of this decision. The Agency shall provide written notification to the Compliance Officer as indicated below that the hearing request and complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge will issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109, and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. 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. See 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 the Complainant and his/her representative. 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. 2020001936 5 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. 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 September 11, 2020 Date