Elly C.,1 Complainant,v.Barbara Stewart, Chief Executive Officer, Corporation for National and Community Service, Agency.

Equal Employment Opportunity Commission

Sep 17, 2019

2019003623 (E.E.O.C. Sep. 17, 2019)

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

Elly C.,1
Complainant,

v.

Barbara Stewart,
Chief Executive Officer,
Corporation for National and Community Service,
Agency.

Appeal No. 2019003623

Agency No. 04-19-001

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated May 1, 2019, dismissing a formal complaint of
unlawful employment discrimination in violation of the Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the period at issue, Complainant worked for the Agency as a Senior Human Capital
Consultant in Washington, D.C.

In January 2019, Complainant initiated the EEO process by contacting an Agency EEO counselor.

On March 2, 2019, the EEO counselor sent Complainant a Notice of Right to File a Formal
Complaint (Notice) via email. The Notice provided, in pertinent part, “[y]ou are now entitled to
file a formal complaint of discrimination on the allegations raised during the pre-complaint
process. Specifically, whether you were subjected to discrimination and harassment based on
disability (physical and mental) concerning the following matters: denial of disability
accommodation and denial of telework schedule.” The Notice informed Complaint that she must
submit a formal complaint within 15 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.
2 2019003623

On March 4, 2019, Complainant responded via email that she received the Notice. On March 19,
2019, Complainant sent an email to the address for filing formal complaints which was provided
in the Notice. In the March 19, 2019 email, Complainant stated “this email serves as my formal
EEO complaint…I have attached my EEO Counseling Report.”

By email dated March 26, 2019, the Agency’s Coordinator for formal EEO complaints (EEO
Official) contacted Complainant. The EEO Official stated that Complainant’s March 19, 2019
email did not contain a formal complaint form. The EEO Official acknowledged that Complainant
had not previously been provided a formal complaint form and that the Agency was now sending
one “to rectify this matter.” The EEO Official asked Complainant to complete, sign, and date the
formal complaint form and return it to the EEO official by March 29, 2019.

By email dated March 29, 2019, Complainant responded to the EEO official providing the formal
complaint form. Complainant had signed and dated the formal complaint form. In section 13 of
the formal complaint form, which asked how a complainant believed they were discriminated
against, Complainant wrote, “[p]lease see EEO Counselor’s Report dated March 4, 2019.”

In its final decision dated May 1, 2019, the Agency dismissed Complainant’s formal complaint.
The Agency found that Complainant’s March 19, 2019 email submission did not meet the standard
for filing a formal complaint. Specifically, the Agency stated that the submission “was not signed
and it was not specific. Simply, attaching your EEO Counselor’s Report…to an email stating your
intent to file a formal complaint was not specific and it lacked the requisite signature.” Final
Agency Decision at 1. The Agency further reasoned that Complainant’s submission of the signed
form on March 29, 2019 which referenced the EEO Counselor’s Report “did not provide the
specificity required for the Agency to know the issues about which [Complainant was]
complaining.”

Finally, the Agency found Complainant’s March 29, 2019 submission (containing the formal
complaint form) to be untimely because it was beyond the applicable 15-day time limit.

The instant appeal followed.2 In a May 30, 2019 statement to the Commission, Complainant states
that she believed that her complaint was sufficient and that she was following instructions set forth
in the Notice. Complainant further states that when the EEO Counselor initially sent her the
Notice, he did not send her the formal complaint form. Complainant states that she sent the formal
complaint form back on March 29, 2019 per the EEO Official’s instructions. Complainant states
that she referenced her EEO Counselor’s Report in regard to her allegations “as they were exactly
the same.”

2 The record reflects that Complainant retained an attorney after the Agency issued a final decision.
The record contains a Notice of Entry of Appearance from Complainant’s attorney dated June 13,
2019.
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Complainant, through her attorney, asserts that her formal complaint should not be dismissed for
lack of signature or untimely filing of the formal complaint because she subsequently provided her
signature and the formal complaint form by the deadline set forth by the Agency. Complainant
further asserts that any problems with deadlines and technicalities with her formal complaint were
due to medical incapacity issues. Moreover, Complainant asserts that she is alleging a continuing
violation from January 2019 to the present when the Agency denied her reasonable
accommodations for her disabilities.

In response, the Agency’s requests that we affirm its final decision. The Agency reiterates that
Complainant’s two submissions to the EEO Counselor did not meet the requirements of a formal
complaint and that Complainant failed to make a timely, complete response to the Notice.
Specifically, the Agency states that “[Complainant] admittedly only sought to notify the Agency
of her intention to subsequently file a formal complaint rather than making her formal complaint
with sufficient detail to enable her claims to proceed.” The Agency also notes that Complainant
did not initially serve a copy of her appeal with the Agency until the Agency received a Notice of
Entry of Appearance by Complainant’s Attorney on June 17, 2019.

ANALYSIS AND FINDINGS

As an initial matter, the Agency asserts that Complainant failed to initially serve the Agency with
a copy of her appeal and that her complaint should be dismissed. The Agency acknowledges that
it subsequently received notice of Complainant’s appeal on June 17, 2019 when it received a
Notice of Entry of Appearance from Complainant’s attorney. The Agency has also had an
opportunity to submit a response brief which we have considered in rendering this decision. Thus,
we find the Agency has not been harmed by Complainant’s procedural error. See Holderman v.
Dep’t of Agriculture, EEOC Request No. 05930875 (June 2, 1994).

Requirements of 29 C.F.R. § 1614.106(c)

EEOC Regulation 29 C.F.R. § 1614.106(c) provides a complaint must contain a signed statement
from the person claiming to be aggrieved or that person’s attorney. This statement must be
sufficiently precise to identify the aggrieved individual and the agency and to describe generally
the action(s) or practice(s) that form the basis of the complaint.

We are not persuaded by the Agency’s arguments that Complainant failed to meet the requirements
of 29 C.F.R. § 1614.106(c) with respect to Complainant’s signature. The record reflects that
Complainant was not initially provided a copy of the formal complaint form by the Agency when
the EEO counselor sent her the Notice. The Agency subsequently sent Complainant a copy of the
formal complaint form in its March 26, 2019 email and requested that Complainant sign and
complete the formal complaint form by March 29, 2019. Complainant responded by the assigned
deadline and submitted a signed formal complaint form. The Commission has previously
instructed agencies to allow a complainant an opportunity to correct a technical defect such as a
lack of a signature, prior to dismissing the complainant’s formal complaint. See Pineda v. U.S.
Postal Serv., EEOC Appeal No. 01940017 (Dec. 29, 1993).
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We are also not persuaded by the Agency’s argument that Complainant’s reference to the EEO
Counselor Report in her formal complaint fails to meet the specificity requirements of 29 C.F.R.
§ 1614.106(c). The Notice specifically sets forth that Complainant’s claims in the formal
complaint may only be ones raised during EEO counseling. The Notice defined the claim on which
Complainant received EEO counseling as a denial of a reasonable accommodation (including
telework) with respect to the basis of disability. In addition, the EEO Counselor’s Report clearly
sets forth Complainant’s denial of a reasonable accommodation claims, lists pertinent dates, and
the alleged responsible management official.3 Based on the foregoing, we find that Complainant’s
reference to the EEO Counselor’s Report in her formal complaint was sufficient to describe
generally the action(s) or practice(s) that form the basis of her complaint.

Dismissal for Untimely Filing of the 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 Agency improperly dismissed Complainant’s formal complaint on the grounds it was untimely
filed. The record reflects that Complainant received the Notice on March 4, 2019. As discussed
above, the Notice did not include a copy of the formal complaint form. On March 19, 2019 (within
the applicable time period), Complainant emailed the address set forth in the Notice and we
conclude her email constituted her formal complaint. An EEO Official subsequently sent her the
formal complaint form and asked her to sign and complete it by March 29, 2019. Complainant
followed the EEO Official’s instructions and signed and completed the form on March 29, 2019.4
As set forth above, we find that Complainant’s reference to her EEO Counselor Report was
sufficient to set forth the action that was the basis for her complaint.5 Based on the foregoing, we
find that Complainant formal complaint was timely filed.

We REVERSE the Agency’s final decision dismissing the formal complaint and we REMAND
these matters to the Agency for further processing in accordance with the ORDER below.

3 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110)
Ch. 2, (V)(A)(2) (rev. Aug 5, 2015) provides, in pertinent part, that the EEO Counselor must be
certain that the claims are clearly defined and the aggrieved person agrees with how the agency
defines the claim.

4 In an attachment to her brief, Complainant submits a signed declaration under penalty of perjury
asserting that no time between March 19, 2019 and May 1, 2019, did the Agency contact her to
clarify her claims.

5 On the formal complaint form, Complainant checked disability as the basis for her complaint.
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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.
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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 CFR § 1614.503(f) for enforcement by that agency.
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.
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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 17, 2019
Date