0520120280
09-22-2015
Complainant, v. Sylvia Mathews Burwell, Secretary, Department of Health and Human Services, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services,
Agency.
Request No. 0520120280
Related Request No. 0520110526
Appeal No. 0120091506
Agency No. HHS-OS-0066-2008
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120091506 (October 13, 2011). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision 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 reconsidering the previous decision and the entire record, the Commission finds that the request meets the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to GRANT the request.
BACKGROUND
Complainant filed a complaint on November 14, 2008, alleging that he was subjected to discrimination and harassment on the bases of national origin (Hispanic) and race (other) when:
1. In January 2007, management manipulated the hiring of Complainant's friends from the Peace Corps by discouraging candidates in applying for positions;
2. From January 2007, through August 2007, management:
a. Gave an order to the office automation clerk that violated policy and ethics regulations;
b. Yelled at the office automation clerk upon learning she reported him to Headquarters, demanding whenever he gives staff an order, they are to follow it and prohibit anyone in the office from having any conversations with anyone in Headquarters; and
c. Conducted corporate punishment and enforced every possible policy or rulebook on the office automation clerk and Complainant despite intervention from upper management;
3. In September 2007, management did not stop the harassment, did not assign Complainant any work for the rest of the year and continued with his irrational behavior;
4. On February 22, 2008, Complainant submitted a leave request for four weeks of Paternity Leave, but every time he turned in a leave request, management either placed it on his desk or in the garbage;
5. In February 2008, as required by the grievance, Complainant met with management, but he was talked down to, belittled and insulted;
6. In April 2008, management kept insisting on deadlines and projects that were not realistic timeframes, and made racial and degrading comments such as ". . . you're Spanish, if you can't complete this just let me know;"
7. In April 2008, Complainant learned of an illustration that management and another worker had created on the kitchen bulletin board, depicting a figure with an orange, bigheaded man with earrings making racial comments;
8. On May 30, 2008, Complainant learned management did not apply any of the advanced sick leave approved nor credit time earned prior to his Paternity Leave;
9. On June 3, 2008, upon returning to work from Paternity Leave, Complainant found his office tampered with and many items missing that were part of his work and some personal documents, but when Complainant a manager, he was told to "figure it out;"
10. On June 4, 2008, the manager again raised his voice at Complainant and talked to him in a very condescending tone;
11. On June 5, 2008, during an inventory compliance review, Complainant stated he was not able to find any of the missing items that were in his office and as a result, failed the review, but he later learned management intentionally manipulated the situation so that Complainant would fail the review; and
12. On June 9, 2008, management informed Complainant he was planning to apply 65 hours of advanced sick leave to the next pay period because he did not believe that anyone would donate hours, but later walked into Complainant's office and stated: "I changed my mind; I do not believe you need it. I can give you four hours if you like." When Complainant explained this would affect his paycheck, management replied, "That's not my problem."
In its final decision dated November 18, 2008, the Agency dismissed claims 1 - 5 pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO counselor contact. The Agency stated that Complainant's initial contact with the EEO Office was made on April 10, 2008. The Agency noted that the incidents cited in claims 1 - 5 occurred well past 45 days prior to Complainant's initial counselor contact. Additionally, the Agency dismissed claims 6 - 12 pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds that Complainant failed to timely file his formal complaint. The Agency noted that Complainant received his Notice of Right to File a Formal Complaint of Discrimination on October 28, 2008. The Agency noted that Complainant's formal complaint was not filed until November 14, 2008, which was beyond the requisite 15-day time frame. The Agency's final decision therefore dismissed Complainant's complaint.
Thereafter, Complainant appealed the Agency's final decision dismissing his complaint to the Commission. In EEOC Appeal No. 0120091506 (May 5, 2011), we dismissed Complainant's appeal as untimely. However, in EEOC Request No. 05201110526, filed by Complainant, we vacated our decision in Appeal No. 0120091506, finding that Complainant's appeal was improperly dismissed as untimely filed. We found that Complainant's appeal was, in fact, timely filed within 30 days of Complainant's receipt of the Agency's final decision. However, we then affirmed the Agency dismissal of Complainant's complainant pursuant to 29 C.F.R. � 1614.107(a)(2) for failing to file a formal complaint within 15 days of receiving the notice of the right to do so. We noted that Complainant received notice of the right to file a formal complaint on October 28, 2008, but did not file his formal complaint until November 14, 2008, which was beyond the 15-day limitation period. We also noted that the right to request consideration was being given because we considered whether Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2) for the first time.
In his request for reconsideration, Complainant, in pertinent part, contends that he mailed his complaint to the Agency on November 11, 2008, within 14 days after he received the notice of the right to file. Complainant therefore contends that the Agency improperly dismissed his complaint pursuant to 29 C.F.R. � 1614.107(a)(2).1 As such, Complainant asserts an error of law with regard to the determination of timeliness.
ANALYSIS
As noted above, our regulations provide that a party seeking reconsideration must demonstrate 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(b). Complainant demonstrates in his request that the previous decision erred when it found, in the absence of a postmark, that Complainant's complaint was not timely filed. Accordingly, Complainant's request for reconsideration is GRANTED.
Agency's Dismissal for Untimely Complaint Filing
The record reflects that Complainant received the Notice of Right to file a Formal Complaint on October 28, 2008, as evidenced by the FedEx tracking receipt. The notice indicated that Complainant had to file a formal complaint within 15 calendar days of its receipt, and the Agency asserts that Complainant did not file his formal complaint until November 14, 2008, three days beyond the limitation period. However, the Agency does not rely upon the existence of a postmark, but rather upon the Agency's date stamp reflecting that it received Complainant's complaint on November 14, 2008. We note the record is absent an envelope containing a postmark. 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." Adams v. Dep't of Homeland Sec., EEOC Appeal No. 0120054463 (Aug. 31, 2007) (citing 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, the Commission has stated that "the agency has the burden of providing evidence and/or proof to support its final decisions." Kelly v. U.S. Postal Serv., EEOC Request No. 05A00985 (Sep. 26, 2002) (quoting Gens v. Dep't of Defense, EEOC Request No. 05910837 (Jan. 31, 1992)). Complainant contends that his complaint dated November 10, 2008, was mailed on November 11, 2008. In the absence of a legible postmark, an item is presumed to have been mailed within 5 days of receipt. 29 C.F.R. � 1614.604(b). As such, the complaint is timely.
Agency's Dismissal for Untimely EEO Counselor Contact (Claims 1 - 5).
The record reflects that Complainant initiated EEO Counselor contact on April 10, 2008. The Supreme Court has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002).
We note that in its final decision, the Agency dismissed claims 1 - 5 for untimely EEO Counselor contact. We find, however, that claims 1 - 5 are timely raised and are sufficiently related to the other portions of Complainant's harassment claim. The record reflects that various incidents comprising Complainant's hostile work environment claim occurred within the 45-day time period preceding Complainant's April 10, 2008, EEO Counselor contact. Because a fair reading of the record reflects that the matters identified in claims 1 - 5 are part of that harassment claim, we find that the Agency improperly dismissed these matters on the grounds of untimely EEO Counselor contact.2
CONCLUSION
After reconsidering the previous decision and the entire record, the Commission finds that complainant's request meets the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to GRANT the request. The decision of the Commission in Request No. 0520110526 is VACATED and the agency's final decision is reversed. There is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims 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.
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 Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 22, 2015
Date
1 The Agency did not file a brief in response to Complainant's request for reconsideration.
2 Our previous decision, Request No. 0520110526, did not address the Agency's dismissal of claims 1 - 5 based on untimely EEO Counselor contact.
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