Efrain B.,1 Complainant,v.Ryan D. McCarthy, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 5, 2019

2019002417 (E.E.O.C. Sep. 5, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Efrain B.,1
Complainant,

v.

Ryan D. McCarthy,
Acting Secretary,
Department of the Army,
Agency.

Appeal No. 2019002417

Agency No. ARCMA18MAY01814

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency’s decision dated December 27, 2018, dismissing his 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. Upon review, the Commission finds that
Complainant’s complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), due to
the untimely filing of the formal complaint.

ISSUE PRESENTED

The issue presented is whether the Agency properly dismissed Complainant’s formal EEO
complaint for untimely filing of the formal complaint.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supply Technician at
the Agency’s Chemical Depot in Pueblo, Colorado.

On June 8, 2018, the Agency’s EEO Specialist emailed Complainant and his representative the
Notice of Right to File a Discrimination Complaint (Notice). The Notice notified Complainant that
a formal complaint had to be filed within fifteen days of receipt of the Notice.

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.
2019002417

2
On June 8, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to
discrimination on the basis of reprisal for prior protected EEO activity when:

1. on May 24, 2018, the Commander announced in a town hall meeting that
Complainant’s job title had been changed to Inventory Specialist, and Complainant
was not previously notified;

2. on May 2, 2018, the Chemical Operations Manager held a meeting with all
employees, without Complainant being present, concerning Chemical
Accountability Management Information Network (GAMIN) training documents
that were to be utilized later in the day for an installation wide training exercise;

3. on May 1, 2018, Complainant discovered the duties he was performing as a GS-7
Supply Specialist are the same duties as a GS-9 Inventory Management specialist
and when he brought this to the attention of the Chemical Operations Manager he
took no action;

4. on April 12, 2018, the Lead Supply Specialist entered a departmental meeting with
open sores on his right arm, exposing everyone to his body fluids and the Chemical
Operations Manager took no action;

5. on April 2, 2018, Complainant notified the Chemical Operations Manager that that
the Lead Supply Specialist treats him differently than the other employees and does
not keep him informed and the Chemical Operations Manager took no action;

6. on April 2, 2018, the Chemical Operations Manager issued him a lower score on
his performance evaluation than he had the past two years despite the fact that the
Chemical Operations Manager didn’t conduct a mid-point review about his
performance; and

7. on January 23, 2018, Complainant reported to the Treaty Compliance Officer that
he had been exposed to bodily fluids during the vanpool by the Lead Supply
Specialist and that the Chemical Operations Manager took no action.

On December 27, 2018, the Agency issued a final decision. The Agency dismissed Complainant’s
formal complaint pursuant to 29 C.F.R. § 1614.107(a)(2), on the grounds that it was untimely filed.
The Agency found that Complainant had digitally signed his formal complaint on June 8, 2018,
but that it was only received by the Agency on December 10, 2018. The Agency determined that
this was beyond the requisite fifteen days from the date of the receipt of the Notice.

CONTENTIONS ON APPEAL

Complainant’s representative (Representative), on appeal, argued that she filed the instant
complaint within the 15 days of receipt of the Notice. In support of her assertions, the
2019002417

3
Representative provided a copy of the email and formal complaint attachment that she had sent to
the EEO Specialist on June 8, 2018, the day Complainant was provided with Notice. The
Representative noted that on December 10, 2018, the Agency’s EEO Specialist Complaints
Program Manager requested a copy of Complainant’s formal complaint, and to whom it was
originally sent. That day, the Representative emailed her the June 8, 2018 formal complaint and
specified that it was originally sent to the EEO Specialist. The Representative argues that the
Agency’s usage of the December 10, 2018 date is therefore inaccurate and false as it was a follow
up to the Agency’s request.

The Agency did not provide an appellate brief.

ANALYSIS AND FINDINGS

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. Based on a thorough review of the record, the Commission
concludes that the dismissal, due to the untimely filing of the formal complaint, was improper.

The record demonstrates that Complainant’s Representative emailed Complainant’s formal
complaint and various attachments on June 8, 2018 at 4:32 p.m. to the Agency’s EEO Specialist.
This was sent in response to the EEO Specialist’s June 8, 2018, 11:18 a.m. email providing
Complainant and the Representative the Notice of Right to File a Discrimination Complaint. Given
the record, the Representative’s email on December 10, 2018, providing the Agency with a copy
of the June 8, 2018 filed formal complaint was merely a response, and not the actual filing date.
Given the specific facts of this particular case, we determine that there is sufficient evidence
reflecting Complainant’s submission of a formal complaint within 15 days of his receipt of the
notice of right to file a formal complaint.

Lastly, the Agency is reminded that under 29 C.F.R. 1614.403(e) it must submit the complaint file
to the Commission within 30 days of initial notification that the complainant has filed an appeal. In
this case, the Agency did not submit the file until July 16, 2019, approximately 3 months after the
Commission’s notification of the appeal.

CONCLUSION

Accordingly, the Agency’s final decision dismissing Complainant’s complaint is VACATED. The
complaint is hereby REMANDED to the Agency for further processing in accordance with this
decision and the ORDER below.

ORDER
Given the Agency’s lengthy delay in submitting the complaint file to the Commission, we find
that the Agency must process the instant complaint expeditiously.
2019002417

4
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 was issued. The Agency shall issue to
Complainant a copy of the investigative file and also shall notify Complainant of the appropriate
rights within ninety (90) 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.

2019002417

5
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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.
2019002417

6
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, Director
Office of Federal Operations

September 5, 2019
Date