0120130196
03-22-2013
Loretta M. Crystal, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Loretta M. Crystal,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120130196
Agency No. FS201200074
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 10, 2012, dismissing her 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Natural Resource Specialist at the Agency's facility in Ironwood, Michigan.
The record indicates that on November 7, 2011, Complainant contacted an EEO Counselor regarding her claims of employment discrimination. When the EEO Counselor was unable to resolve her claims informally, he issued Complainant a Notice of her right to file an EEO complaint within 15 days. The record includes a certified mail receipt indicating that Complainant received the Agency's Notice on February 8, 2012.
Subsequently, on July 26, 2012, the Agency received a letter from Complainant's attorney, dated July 20, 2012, requesting an update on the status of Complainant's formal complaint and stating that the complaint had been filed 148 days ago. Upon receipt of the correspondence from Complainant's attorney, the Agency's Employment Complaints Division (ECD) contacted Complainant's attorney and advised him that there was no record of Complainant having filed a formal complaint. On July 26, 2012, the ECD requested the attorney provide documentation that would allow for verification of the complaint filing date. In response, Complainant's attorney emailed the Agency indicating that the complaint was mailed via first class mail so there was no available tracking information regarding the date the complaint was mailed. Complainant's attorney also included in an attachment to his email, a copy of Complainant's formal complaint dated February 23, 2012.
In the February 23, 2012 complaint, Complainant alleged that the Agency subjected her to discrimination on the bases of sex (female), disability (severe depression and disabling migraines), and reprisal for prior protected EEO activity when:
1. On August 22, 2011, her request for reimbursement for "Transfer of Station" costs, which she had been promised before accepting her reassignment was denied;
2. On September 2, 2011, she learned that her supervisor had initiated a leave audit on her without her knowledge or consent and her request that he rescind the audit was denied;
3. On or about September 11, 2011, her supervisor failed to give her an exceeds on any of her five performance elements, advising her that she did "great work, but [had] a negative attitude" and included "need to have a positive attitude" as a performance element in her Fiscal Year 2012 performance plan;
4. On October 13, 2011, she received an electronic message from her supervisor effectively cancelling her scheduled "special-use" permit and lift inspection training, which had been offered to her for free;
5. On unspecified dates, her requests for leave were denied;
6. On unspecified dates, her requests for "special-use" training was denied;
7. On an unspecified date, her request for a laptop was denied; and
8. On various dates, she was subjected to additional harassing treatment including:
a. On June 8, 2011, when she returned to work after being on leave for personal reasons since May 24, 2011, her supervisor informed her that had she not returned by June 13, 2011, he would have found a replacement for her position;
b. On September 9, 2011, her supervisor yelled at her over the telephone when she requested a day off using credit hours she had earned by working on the preceding weekend;
c. On October 12, 2011, her supervisor questioned the accuracy of her timesheet, loudly accused her of fabricating her credit and wellness hours, and then "flew into a rage" when she left his office after telling him that she was tired of being bullied by him and was not going to be in a room alone with him again;
d. On November 1, 2011, she was threatened with being charged as absent without leave if she did not submit a request for advance leave;
e. On an unspecified date, after she objected to revising performance elements for her subordinates to reflect arbitrary forest-wide elements, her supervisor ordered her to re-do them, "or else;" and
f. Beginning on an unspecified date, she was required to check in and out of the office with two managers, which none of her coworkers were required to do.
In its final decision dated September 10, 2012, the Agency found that Complainant failed to prove that she filed her complaint within 15 days of receiving the Agency's Notice advising her of her right to do so. Consequently, the Agency dismissed the entire complaint as untimely in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(2). The instant appeal followed.
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.
The record discloses that Complainant received the notice of right to file a formal complaint on February 8, 2012. The Agency asserts it did not Complainant's formal complaint until July 26, 2012, which is beyond the limitation period. On appeal, however, Complainant's attorney submits an affidavit attesting to the fact that Complainant's formal complaint was mailed via first class mail to the Agency on February 23, 2012. In reviewing this matter in the light most favorable to Complainant, we find that the attorney's affidavit is sufficient proof in this instance that Complainant's formal complaint was timely filed. We find therefore that the Agency's decision dismissing Complainant's complaint as untimely should be reversed.
Accordingly, the Agency's final decision is REVERSED. The complaint is REMANDED to the Agency for processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claim 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 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.
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 22, 2013
__________________
Date
2
0120130196
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130196