closed0120130153
02-11-2013
Phillip R. Williams, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Department of Defense Education Activity), Agency.
Phillip R. Williams,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.
Appeal No. 0120130153
Agency No. PE-FY10-077
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated September 20, 2012, 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. and 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 as an Administrative Officer at the Agency's Ikego Elementary School facility in Japan.
The record reflects the following chronology of events. Complainant initiated EEO Counselor contact on May 11, 2010. On June 8, 2010, the Agency EEO Counselor sent Complainant via email a "Notice of Rights-Extension of Time." Therein, the EEO Counselor provided, in pertinent part: that: "[t]his is to advise you that on June 10, 2010, 30 calendar days will elapse since you first contacted an EEO Counselor on May 11, 2010...I am requesting that you agree to an extension of time on the informal processing of the complaint...Please indicate your selection by checking the appropriate statement in the attachment...and returning it to me by no later than 5 days after receipt of this request."
On June 10, 2010, the EEO Counselor sent Complainant via email a Notice of Right to File a Formal Complaint (Notice). In the June 10, 2010 email, the EEO Counselor provided in pertinent part that: "On June 8, 2010, I sent an email asking you if you agree to extend the counseling period to another 60 days from June 10, 2010; however, you did not respond...The purpose of this letter is to issue you a [Notice]...You have 15 days from receipt of this email to file a formal complaint."
By email dated June 12, 2010, Complainant responded to the EEO Counselor and stated "I would truly like to know what is going on here. You sent me an email requesting a 60 day [extension] on June 8, 2010, telling me that I have 5 days to respond, and then you send me an email on June 10, 2010 telling that I have to respond that day...I will go by what your email stated June 8, 2010 and not June 10, 2010."
The record contains a copy of the Extension of Time form signed by Complainant and dated June 12, 2010. The Complainant checked the following option on the Extension of Time form "I agree to extend the counseling period for an additional 60 calendar days beyond June 10, 2010. I understand that if the matter has not been resolved before the end of the period, I will receive a written notice informing me of my right to file a formal complaint..."
By email to Complainant dated June 17, 2010, the EEO Counselor stated "I received the attached document on June 4, 20101. Is it your intention to amend your previous EEO complaint to include the claim of termination?" Complainant responded to the EEO Counselor via email on June 17, 2010, that he wanted to include his termination as part of the instant matter.
On June 30, 2010, Complainant via email and regular mail notified the EEO Counselor that he was now represented by an attorney and requested that the attorney be copied on all future communication regarding the instant matter.
On July 24, 2012, Complainant's attorney contacted the Agency's EEO office and requested an update with respect to Complainant's claims. The Agency responded to Complainant's attorney via letter dated August 1, 2012. Therein, the Agency stated that a Notice was issued to Complainant on June 10, 2010 and that the Agency did not receive a formal complaint from him; thus, Complainant's "pre-complaint was closed with issuance of the [Notice]."
On August 22, 2012, Complainant's attorney stated that Complainant on June 12, 2010 had requested an extension of the counseling period and that on June 17, 2010, the EEO Counselor had acknowledged that Complainant was seeking to include his termination claim as part of the instant matter. Complainant's attorney asserted that the Agency should use the August 22, 2012 correspondence to constitute a formal complaint.
In its final decision, the Agency determined that Complainant's complaint comprised a hostile work environment claim (comprising numerous incidents) which culminated in Complainant's termination effective June 4, 2010.
The Agency dismissed Complainant's complaint on the grounds that his formal complaint was untimely filed. The Agency found that Complainant acknowledged receipt the Notice of Right to File a Formal Complaint (Notice) on June 12, 2012. However, the Agency found that Complainant's formal complaint was not filed until August 22, 2012, beyond the applicable time limit. The Agency further asserts that Complainant's complaint should be barred under the doctrine of laches. The Agency noted that "[t]he record shows that by letter dated July 24, 2012, [Complainant's attorney] requested a status update of this case, 775 days after the [Notice] was issued."
The instant appeal followed.
ANALYSIS AND FINDINGS
The Commission finds that the Agency improperly dismissed Complainant's complaint on the grounds that the formal complaint was untimely filed. We find that the Agency's processing of this matter, as set forth above, provided unclear information to Complainant. In addition, we find that Complainant reasonably believed that the informal counseling period was extended and thus the Agency's June 10, 2010 Notice was not valid.
As set forth above, the Extension of Time form provided Complainant 5 days from receipt, the option of electing to extend the counseling period. Complainant responded on June 12, 2010, within the designated timeframe, that he wished to extend the counseling period.
The record is devoid of evidence that the Agency subsequently communicated to Complainant that it would not extend the counseling period. Rather, the record suggests that the Agency had extended the counseling period and was continuing to process Complainant's claims at the informal counseling level.
The record contains a copy of the EEO Counselor's Report. Therein, the report provides that an extension request was granted on June 12, 2010, after the Agency issued the Notice on June 10, 2010. In addition, the Counselor's Report indicates that the EEO Counselor was still processing the matter at the informal level subsequent to the Notice being issued on June 10, 2010. Specifically, the Counselor's Report contains a copy of a memorandum from the EEO Counselor to an Agency official dated June 17, 2010. Therein, the EEO Counselor advised the Agency official that Complainant's termination would be included in the instant matter and that he would interview witnesses with knowledge of the issue. The EEO Counselor further advised the management official that no judgment as to whether or not discrimination occurred would be made at "the informal level."
Based on the foregoing, we find that the Agency should have issued Complainant a valid Notice of Right to File, subsequent to the extension of the counseling period, which it failed to do. We are not persuaded by the Agency's argument that the doctrine of laches should bar Complainant's claim. We find that the doctrine of laches should not apply in the instant matter in which the Agency actions contributed to Complainant belief that it was continuing to process the instant matter at the informal level. See Dowell v. Dep't of Treasury, EEOC Appeal No 01940339 (Jan. 25, 1994).
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint and we REMAND this matter to the Agency for further processing in accordance with the Order below.
ORDER (E0610)
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 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
February 11, 2013
Date
1 The record reflects that on June 4, 2010, Complainant forwarded to the EEO Counselor via email a copy of the Agency's notice terminating him.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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