Vena H.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense (Office of the Secretary of Defense), Agency.

Equal Employment Opportunity Commission

Sep 30, 2020

2020004078 (E.E.O.C. Sep. 30, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Vena H.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of Defense (Office of the Secretary of Defense), Agency. Appeal No. 2020004078 Agency No. 2020-WHSFMD-038 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated April 17, 2020, 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 an Accountant, 0510, GS 14 at the Agency’s Financial Management Directorate, Audit Support and Internal Controls in Alexandria, Virginia. On January 17, 2020, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. According to the Agency, on April 8, 2020, Complainant filed a formal complaint claiming that the Agency subjected her to discriminatory harassment in reprisal for prior protected EEO activity when: 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. 2020004078 2 1. on January 8, 2020 to present, the Acting Director removed Complainant’s access to the network system, thus preventing her from performing her duties; 2. on December 9-23, 2019, Complainant was suspended for 14 days without pay; and 3. on September 9, 2019, Complainant was charged Leave Without Pay (LWOP) even though she was in the office the entire day. On April 17, 2020, the Agency issued a final decision. The Agency dismissed the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), finding that the formal complaint was untimely filed. The Agency stated that it initially mailed the Notice of Right to File a Formal Complaint (Notice) to Complainant and Complainant’s attorney on February 13, 2020. However, Complainant’s attorney did not receive this initial Notice because the Agency used an incorrect address. Subsequently, the Agency mailed another Notice to the attorney on March 17, 2020, which the Agency contends was received by the attorney on March 20, 2020. The Agency found that Complainant’s attorney did not file the formal complaint until April 8, 2020, which it determined to be two days beyond the 15-day filing period. The Agency also dismissed claim 3 on the alternative grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). The instant appeal followed. On appeal, Complainant, through counsel, argues that as a result of COVID-19, she began working remotely during the week of March 16, 2020. Complainant’s attorney explains that the Notice was received at the front desk of the building where her office suite is located. The attorney indicates that the front desk did not provide her with the Notice until March 23, 2020. She asserts that she timely mailed the formal complaint on April 7, 2020, exactly 15 days after she had received the Notice. ANALYSIS AND FINDINGS Untimely Formal Complaint 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. The record does not include adequate evidence that Complainant’s attorney received the Notice on March 20, 2020, as the Agency determined. The record does contain delivery tracking confirmation documentation that indicates the Notice was delivered to Complainant’s attorney’s address on Friday, March 20, 2020, to the “Front Desk/Reception/Mail Room Atlanta, GA.” Complainant’s attorney indicated on appeal, however, that she was working remotely due to COVID virus emergency and did not actually receive the Notice from the front desk until 2020004078 3 Monday, March 23, 2020. Under these unique circumstances, we are persuaded to deem March 23, 2020, as the date of receipt of the Notice by Complainant’s attorney. Using March 23 as the receipt date, we now consider whether Complainant’s attorney timely filed the formal complaint. Complainant’s attorney asserts it was filed by certified mail on April 7, 2020, while the Agency argues it was mailed on April 8, 2020, one day beyond the 15-day limitation period from the March 23 receipt of the Notice. The record includes a copy of the envelope containing Complainant’s formal complaint. We note that the envelope contains two postmarks. One appears to be from Complainant’s attorney’s postage machine and is dated April 7, 2020. The other postmark date, provided by the Post Office, is difficult to read in the file provided by the Agency. On appeal, Complainant’s attorney provided an April 7, 2020 (at 2:37 pm) email from the attorney to the law office clerk directing the clerk to submit the formal complaint by certified mail that day. The clerk confirmed in an April 7, 2020 email (at 4:03 pm) that she completed this task. Given these circumstances, we conclude that there is enough doubt and confusion surrounding this matter that we will exercise our discretion to excuse any brief delay that occurred in the filing of the complaint. See 29 C.F.R. § 1614.604(c). Untimely EEO Counselor Contact - Claim 3 The Agency also improperly dismissed claim 3 on the alternative grounds of untimely EEO Counselor contact. The record reflects that Complainant initiated EEO Counselor contact on January 17, 2020. The Commission has held that “[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filling period. This includes incidents that occurred outside of the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence.” EEOC Compliance Manual, Section 2, Threshold Issues at 2 - 75 (revised July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)). The record reflects that other two incidents (claims 1 and 2) comprising Complainant’s hostile work environment claim occurred within the 45-day time period preceding Complainant’s January 17, 2020 EEO Counselor contact, as discussed above. Because a fair reading of the record reflects that the matters identified in claim 3 are part of that harassment claim, we find that the Agency improperly dismissed this claim on the grounds of untimely EEO Counselor contact. CONCLUSION We REVERSE the Agency’s final decision dismissing the formal complaint on the procedural grounds discussed above. We REMAND this matter to the Agency for further processing in accordance with the ORDER below. 2020004078 4 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. 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 C.F.R. § 1614.503(f) for enforcement by that agency. 2020004078 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2020004078 6 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 30, 2020 Date