[Redacted], Mandi B., 1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 21, 2020

Appeal No. 2020003546 (E.E.O.C. Dec. 21, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mandi B.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Request No. 2021000464 Appeal No. 2020003546 Agency No. 200J-0657-2020102363 DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020003546 (September 24, 2020). 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). For the reasons that follow, the Agency’s request for reconsideration is DENIED. ISSUE The issue is whether the Agency’s request meets the criteria for reconsideration in 29 C.F.R. § 1614.405(c). 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. 2021000464 2 BACKGROUND On March 27, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American) and in reprisal for prior protected EEO activity when she received a proposed suspension on January 13, 2020, which was upheld on January 28, 2020. On February 26, 2020, the Agency concluded the informal equal employment opportunity (EEO) counseling and sent Complainant and her then attorney the notice of right to file a formal complaint (NRTF). On March 24, 2020, an EEO Specialist emailed Complainant’s attorney, noting that Complainant stated that she had not received a copy of the NRTF, and attached a copy of the NRTF to the email. Complainant filed her formal complaint on March 27, 2020. On April 9, 2020, another EEO Specialist emailed Complainant’s attorney and noted that the NRTF sent to his office was returned to the Agency because his office location had moved, and the Agency did not have his new mailing address. The EEO Specialist also stated that Complainant received the NRTF on February 28, 2020, and she did not file her formal complaint until March 27, 2020, which was beyond her 15-day deadline. The EEO Specialist requested an explanation for the delay and stated that if she did not receive a response, the complaint could be dismissed. On April 24, 2020, the Agency dismissed Complainant’s complaint as untimely and for failure to cooperate, pursuant to 29 C.F.R. § § 1614.107(a)(2), 1614.107(a)(7). The Agency stated that Complainant received the NRTF on February 28, 2020, and that Complainant did not file her formal complaint until March 27, 2020. The Agency also noted that it did not receive a response to its request for a reason for the untimeliness. Complainant appealed the Agency’s dismissal. On September 24, 2020, the Commission reversed the Agency’s dismissal and remanded the complaint for processing. The Commission determined that the Agency did not support its decision regarding the date the NRTF was delivered. While the record provided by the Agency contained emails confirming delivery on February 26, 2020, there was no further tracking information or other evidence to show if and when Complainant received the package, or when the package intended for her attorney was sent back to the Agency. As such, the Commission concluded that there was no evidence supporting the Agency’s dismissal. Mandi B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2020003546 (Sept. 24, 2020) In its request for reconsideration, the Agency argues that the Commission’s prior decision involves a clearly erroneous interpretation of material fact. Specifically, the Agency asserts that the Commission did not consider the “Proof of Delivery,” which was clear evidence showing that Complainant received the NRTF on February 28, 2020. The Agency requests that the Commission reconsider its prior ruling in this case and affirm the Agency’s dismissal. Complainant did not respond to the Agency’s request for reconsideration. 2021000464 3 ANALYSIS EEOC regulation requires that complaints of discrimination must be filed within 15 days of receipt of the notice informing a complainant of his or her right to file a discrimination complaint. 29 C.F.R. § 1614.106(b). Where, as here, there is an issue of timeliness, “[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness.” Guy v. Dep’t of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) quoting Williams v. Dep’t of Defense, EEOC Request No. 05920506 (Aug. 25, 1992). In addition, when a complainant is represented by an attorney and has informed the agency of the representation, the time shall be calculated from the receipt of the required document by the complainant’s attorney. 29 C.F.R. § 1614.605(d). In this case, it is undisputed that the Agency was aware that Complainant was represented by an attorney, and that it mailed him a copy of the NRTF. While the Agency argues that it offered “Proof of Delivery” by Complainant, we find that it did not provide any evidence showing delivery of the NRTF to Complainant’s attorney. Rather, the record shows that on April 9, 2020, the Agency acknowledged that the copy sent to Complainant’s attorney was not delivered and returned to the Agency. The record also shows that the Agency emailed a copy of the NRTF to Complainant’s attorney on March 24, 2020. There is no proof showing when Complainant’s attorney received the email; however, we note that the earliest date that he could have received the NRTF was March 24, 2020. Since EEOC’s regulations state that when a complainant is represented by an attorney, time calculations are from the date of receipt by the complainant’s attorney, we find that Complainant’s formal EEO complaint filed on March 27, 2020, was within 15 days of receipt of the NRTF by her attorney. Accordingly, we find that Complainant’s formal EEO complaint was filed in a timely manner and that the Agency erred when it dismissed her complaint for untimeliness. We note that the Agency did not provide any arguments regarding a failure to cooperate, as such, we find that there is no need to address the matter. After reviewing the previous decision and the entire record, the Commission finds that the Agency’s 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. 2020003546 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 as set forth 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 the 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. 2021000464 4 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. 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 FAD, 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. 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. 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 CFR § 1614.503(f) for enforcement by that agency. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 2021000464 5 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. 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 December 21, 2020 Date