0120113549
01-31-2013
Marytherese Miller, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Marytherese Miller,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120113549
Agency No. ARUSMA11APR01652
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated July 1, 2011, dismissing her complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Legal Technician at the Agency's facility in West Point, New York.
On June 9, 2011, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the bases of disability and reprisal for prior protected EEO activity when:
a. in December 2009, Complainant was notified that her previously approved disability-based reasonable accommodation was to be modified;
b. from December 2009 through the present, the requests for medical documents regarding Complainant's physical limitations were excessive and exceeded Complainant's ability to provide them;
c. on March 11, 2011, Complainant received notification that she was required to participate in a fitness-for-duty examination to determine her medical limitations;
d. the fitness-for-duty notification letters dated March 4 and 11, 2011, contained false statements and new physical requirements;
e. on March 18, 2011, the medical exam portion regarding climbing and use of stairs was not representative of her actual job requirements or the situation in question;
f. on March 18, 2011, the medical examiner told Complainant that if she could not provide documentation from her physician allowing her to access either authorized location, she would not be happy; and
g. on an unspecified date, Complainant alleges that she has received wrongful accusations regarding the use of leave pursuant to the Family Medical Leave Act.
In its final decision, the Agency dismissed Complainant's formal complaint on the grounds that it was untimely filed. The Agency asserted that Complainant received the notice of right to file a formal complaint on May 16, 2011, but that she did not file her formal complaint until June 9, 2011, although the notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt.
The instant appeal followed. On appeal, Complainant contends that she did not receive the Agency's notice of right to file until May 25, 2011, and as such, her June 9, 2011 formal complaint was timely filed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.106(b) requires that a formal complaint be filed within fifteen days of receipt of the Notice advising of the right to do so.
The Agency contends that per Complainant's request that documentation be sent to Complainant's personal email address, the Notice of Right to File was emailed to Complainant on May 16, 2011. However, the record does not disclose that Complainant at any time acknowledged receipt of the Agency's Notice at her personal email address. Moreover, the Agency has not submitted any evidence that Complainant actually received the Notice on May 16, 2011, offering only that Complainant did not affirmatively say that she did not receive the Notice. In addition, we note that the Agency has provided the Commission with a copy of the email purportedly sent to Complainant on May 16, 2011. Therein, the Agency expressly requested that Complainant "please confirm receipt of this email." However, the Agency failed to produce evidence that Complainant confirmed receipt of the Notice. The Commission regulations do not expressly address or define service by electronic mail. Upon review of the record in this matter, we are not persuaded by the Agency's determination that the instant formal complaint was not timely filed. 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." Guy v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994). (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992). The Agency has failed to meet its burden.
Accordingly, based on a thorough review of the record, we REVERSE the Agency's final decision dismissing Complainant's formal complaint as untimely. We REMAND the matter to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E0610)
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 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
January 31, 2013
__________________
Date
2
0120113549
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113549