EEOC Appeal No. 0120150239
03-18-2015
Complainant v. Dep't of Justice
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120150239
Hearing No. 510-2014-00243X
Agency No. BOP-2013-0805
DECISION
Complainant filed an appeal from an Agency's final order, dated September 22, 2014, regarding the dismissal of her equal employment opportunity (EEO) complaint claiming 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
During the relevant time, Complainant worked as a Physician Assistant, GS-11, at the Agency's Federal Detention Center (FDC) in Miami, Florida.
Believing that she was subjected to unlawful discrimination, Complainant contacted an EEO Counselor. Informal efforts to resolve Complainant's concerns were unsuccessful. On August 14, 2013, Complainant filed the instant formal complaint based on sex and reprisal.
The Agency framed the claim as follows:
From April 16, 2013 and continuing through August 14, 2013, Complainant has been subjected to sex-based wage discrimination. Complainant asserts that she is assigned a disproportionate amount of work, with a higher degree of difficulty; however Complainant is salaried at the GS-11, Step 10, as compared with her male counterpart's salary at the GS-12 step.
After 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 timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency's July 30, 2014 Motion to Dismiss. The AJ agreed with the Agency's argument that Complainant filed her formal complaint beyond the 15-day limitation period from when she had "constructive notice" that her notice of right to file had been sent to her by certified mail and was waiting at the post office for her to pick up.
The Agency issued a final order adopting the AJ's dismissal. Complainant filed the instant appeal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a written complaint with an appropriate agency official within fifteen (15) calendar days after the date of receipt of the notice of the right to file a formal complaint. In turn, 29 C.F.R. � 1614.107(a)(2) provides that the agency shall dismiss a complaint that fails to comply with the applicable time limits contained in �� 1614.105, 1614.106, and 1614.204(c), unless the agency extends the time limits in accordance with � 1614.604(c).
In this case, the Agency contends that the notice of right to file a formal complaint ("Notice") was sent to Complainant's home address, via certified mail, on July 15, 2013. On that same day, the Agency asserts that Complainant was notified by e-mail by the EEO counselor that the Notice had been issued and mailed to her. According to the Agency, a notice of attempted delivery was left at Complainant's residence on July 18, 2013, requiring her to go to the post office to pick up her certified mail (containing the Notice). Tracking documentation, however, indicates that the certified mail item was not "Delivered" until August 2, 2013. Complainant filed her formal complaint on August 14, 2013, 12 days later.
The Agency argued, and the AJ agreed, that evidence of email correspondence between Complainant and an Agency EEO Counselor in the wake of the postal transmission of the Notice should be sufficient to create constructive receipt of the Notice on the date of the first attempted delivery (July 18). However, we reject this argument, and reiterate the evidence shows that Complainant's actual receipt of the Notice was on August 2, 2013. 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)). The Commission finds that the Agency has not met this burden and deems the complaint timely filed.1
CONCLUSION
Accordingly, the decision to dismiss the complaint was improper, and is hereby REVERSED. The complaint is REMANDED to the hearings unit for continued processing in accordance with this decision and the ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the Miami District Office the request for a hearing within fifteen (15) calendar days of the date this decision becomes final. The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. The agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the AJ shall 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 (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 (M0610)
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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 18, 2015
__________________
Date
1 The Agency cited to Wheeler v. Equal Employment Opportunity Commission, EEOC Appeal No. 01940798 (August 25, 1994), in support of its "constructive receipt" argument. However, we distinguish the instant case from Wheeler on the facts, because in that case, the complainant actually received and signed for the Notice sent by certified mail and then sent it back to the post office. There is no evidence here that Complainant actually received the Notice during the unsuccessful delivery attempt on July 18.
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0120150239
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120150239