0120151030
07-15-2015
Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Farm Service Agency), Agency.
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Farm Service Agency),
Agency.
Appeal No. 0120151030
Hearing No. 510-2014-00198X
Agency No. 980361
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated February 11, 2015, concerning her complaint of unlawful employment discrimination alleging a violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a County Executive Director at the Agency's facility in Moore Haven, Florida.
Complainant contacted an EEO counselor on March 5, 2013, alleging discrimination and harassment on the basis of sex when: (1) she was harassed on January 29, 2013; (2) she was sexually harassed on January 29, 2013; and (3) on October 1, 2012, the District Director failed to complete her 2012 performance appraisal.
On April 1, 2013, Complainant agreed to postpone the final interview with the EEO counselor. On April 16, 2013, Complainant sent an email to the EEO counselor, stating she wanted to file a formal complaint. On April 17, 2013, the EEO counselor conducted a final interview over the telephone and mailed the notice of right to file a formal complaint to Complainant. The record contains a certified mail return receipt ("green card") showing Complainant received the notice on April 23, 2013.
On May 29, 2013, Complainant's attorney sent a letter to the Agency seeking to settle the matter, informing it that she was now representing Complainant and that the letter was "submitted strictly for settlement purposes only." (Underlining in original.)
Almost seven months later, on December 24, 2013, Complainant submitted a request for a hearing on the matter to EEOC's Miami District Office.
In response to an order from the EEOC Administrative Judge (AJ) for the complaint file, the Agency informed the AJ that Complainant never filed a formal complaint. The AJ held a prehearing conference on June 17, 2014, to resolve the issue.
Complainant admitted that she received the April 2013 notice of right to file in the mail, but stated there was no complaint form attached. On July 22, 2014, the AJ issued an order dismissing the complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), due to Complainant's failure to timely file a formal complaint. The AJ concluded that, regardless of whether or not Complainant received a complaint form, the notice contained clear instructions on how to file a complaint, including the timeframe for doing so. The AJ also determined that there was no dispute that Complainant had previously received training on the Agency's EEO filing process. Finally, the AJ determined that Complainant's argument that her April 16, 2013 email satisfied the requirement for filing a formal complaint was erroneous because this occurred before Complainant was issued the notice of right to file. The AJ noted that Complainant had her final interview with the EEO counselor on April 17, 2013, and received the notice on April 23, 2013. The AJ found Complainant failed to provide an adequate explanation for why she failed to follow the clear instructions of the notice of right to file following the final interview.
The Agency adopted the AJ's dismissal of the complaint and the instant appeal followed.
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. 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).
The record in this case indicates that Complainant received a notice of the right to file a formal discrimination complaint on April 23, 2013. The notice informed Complainant that she had fifteen days from the date of receipt of the notice in which to file a formal complaint. The record further reflects that Complainant did not file a formal complaint. Complainant has failed to present adequate justification, pursuant to 29 C.F.R. � 1614.604(c) for extending the filing period.1
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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 (S0610)
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. 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. If you file a request to reconsider and also file a civil action, 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
July 15, 2015
__________________
Date
1 The record indicates on July 10, 2013, Complainant filed a private sector charge with the EEOC against the County. However, the Agency contended, without objection, that all federal and County employees are required to first exhaust the federal sector complaint process (29 C.F.R. Part 1614) before filing a private sector charge. Regardless, this was well beyond the 15-day limitation period from Complainant's receipt of the notice of right to file.
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0120151030
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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