EEOC Appeal No. 0120180133
12-19-2018
McKinley P. v. Dep't of the Army
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Mckinley P,1
Complainant,
v.
Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120180133
Agency No. ARSILL16OCT04324
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 11, 2017, dismissing a formal 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Health Systems Specialist at the Agency's Reynolds Army Health Clinic in Fort Sill, Oklahoma.
On August 28, 2017, Complainant filed the instant formal complaint. Complainant claimed that the Agency subjected him to discrimination based on race and age.
In its September 11, 2017 final decision, the Agency dismissed the formal complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), because it was not timely filed. The Agency noted that on April 18, 2017, the EEO office contacted Complainant by telephone, to inform him that the Notice of Right to File (hereinafter referred as "Notice") would be mailed to his address of record. The Agency stated that Complainant confirmed his address of record and that a responsible agent would be available to receive the Notice. The Notice was mailed to Complainant's address of record on April 19, 2017 via certified mail. The Notice notified Complainant that a formal complaint had to be filed within fifteen days of receipt of the Notice. The Agency stated that the U.S. Postal Service attempted to deliver the Notice at Complainant's address of record on April 21, 2017; however, no responsible agent signed for the official mail.
Further, the Agency stated that "three notices of official mail" to be picked up from the post office were left at Complainant's address of record between April 21, 2017 to May 15, 2017, while the mail was held at the post office for 21 days (which is the maximum time allowed). The Agency found, however, that Complainant did not sign for the Notice which resulted in the post office returning the mail to the Agency on May 15, 2017 "10 days over the regulatory timeline for filing a Formal Complaint."2
The Agency stated that the EEO office picked up the returned mail on May 30, 2017. The EEO office contacted Complainant to notify him that the Notice was returned to the EEO office due to the official mail being unclaimed and that "the deadline for filing a Formal Complaint has passed." On August 21, 2017, Complainant contacted the EEO office requesting that they mail the Notice to his address of record. The Agency further stated "once again, the office notified Complainant that the timeline to file a Formal Complaint had passed but the Complainant insisted that this office resend the notification.
Furthermore, the Agency stated that on August 23, 2017, the EEO office mailed a second Notice to Complainant's address of record. On August 28, 2017, Complainant's spouse hand-delivered Complainant's formal complaint to the EEO office. However, the Agency determined that Complainant waited until August 28, 2017, to file his complaint, which it found to be beyond the requisite fifteen days from the date of the Notice was mailed to Complainant on May 15, 2017.
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.
According to the Agency, the April 19, 2017 Notice informing Complainant that he had to file a formal complaint within 15 days of its receipt was received by him on August 28, 2017. The Agency determined that Complainant filed his formal complaint on August 28, 2017, more than 15 days from the day the Notice was mailed to Complainant's address of record. We note that the record contains a copy of the certified mail receipt indicating that Complainant received the second Notice at his address of record on August 23, 2017, and his spouse hand-delivered his complaint on August 28, 2017, which is within the requisite 15-day period. Therefore, we find that the Agency has failed to properly support its dismissal of the formal complaint as untimely filed.
The Agency final decision dismissing the formal complaint is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER (E1016)
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 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.
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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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. 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
December 19, 2017
__________________
Date
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 The record does not contain a copy of the "three notices of official mail."
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120180133
5
0120180133