Violet F.,1 Complainant,v.Ryan D. McCarthy, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 5, 2019

2019001836 (E.E.O.C. Sep. 5, 2019)

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

Violet F.,1
Complainant,

v.

Ryan D. McCarthy,
Acting Secretary,
Department of the Army,
Agency.

Appeal No. 2019001836

Agency No. ARUSAR18MAY01913

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency’s decision dated October 3, 2018, 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.

ISSUE PRESENTED

The issue presented is whether the Agency properly dismissed Complainant’s formal EEO
complaint for untimely filing the formal complaint.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Support Services
Specialist at the Agency’s Administrative Services Support Branch in Mountain View, California.

On May 24, 2018, Complainant initiated EEO Counselor contact. Informal efforts to resolve her
concerns were unsuccessful. On August 28, 2018, the Agency emailed the Notice of Right to File
a Formal Complaint (Notice) to Complainant. The Notice informed Complainant that she had 15
days from the date of receipt of the Notice in which to timely file a formal complaint.

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.
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On August 29, 2018, the Agency sent Complainant a follow up email requesting acknowledgment
of the Notice. The email reiterated that Complainant had 15 calendar days to file her formal
complaint. On August 31, 2018, Complainant acknowledged receipt of the Notice by email
response.

On September 14, 2018, Complainant explained to management that she was out of the office
because her daughter was sick.

On September 18, 2018, Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination on the bases of sex and disability when:

1. in May 2016, Complainant’s coworker, the Traffic Management Specialist grabbed
her thigh and told her he wanted to “get in there,” meaning between her legs;

2. in July 2016, another male colleague forced her, face first, down on a desk, pressed
his groin up against her body, grabbed at her skin and told her to tell him what his
limits were;

3. in February 2018, a male employee asked her, “Can I lick you?”;

4. beginning in 2014 and continuing through March 27, 2018, the Traffic Management
Specialist has made various inappropriate comments about her physical
appearance, that she should date him, about her weight, that she should “give him
a chance,” and that “I may be old, but I’m young in bed.”; and

5. in March 2018, a male employee repeatedly opened doors for her and then stared
at her as she walked down the hallway, and one occasion, he touched her hand as
she was trying to empty the trash.

On September 19, 2018, Complainant informed the Agency that her complaint was filed late
because she could not get to her laptop.

On October 3, 2018, the Agency issued a final decision. Therein, the Agency dismissed the formal
complaint on the grounds that it was not timely filed pursuant to 29 C.F.R. § 1614.106(b).

CONTENTIONS ON APPEAL

Neither the Agency nor Complainant provided an appellate brief.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.106(b) requires the filing of a complaint with an appropriate
agency official within 15 calendar days after the date of receipt of the notice of the right to file a
formal complaint. An agency shall dismiss a complaint or a portion of a complaint that fails to
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comply with the 15-day time limit contained in 29 C.F.R. § 1614.107(a)(2), unless the agency
extends the time limits in accordance with 29 C.F.R. § 1614.604(c). Under 29 C.F.R.
§ 1614.604(c), this time limit is subject to waiver, estoppel, and equitable tolling.

The record indicates, on August 28, 2018, Complainant was emailed the Notice of Right to File a
Formal Complaint (Notice). On August 31, 2018, Complainant acknowledged receipt of the Notice
by email response. Although the Notice indicated that Complainant had to file a formal complaint
within 15 calendar days of its receipt, Complainant did not file her formal Complaint until
September 18, 2018. Counting from August 31, 2018, the September 18, 2018 filing date made
the complaint untimely. The only explanation that Complainant provided was that her daughter
was sick, and that she could not access her laptop in time. In this case, Complainant has failed to
provide sufficiently persuasive evidence that she was, due to the difficulties she provided, so
incapacitated that she was rendered unable to meet the deadline for filing a timely formal
complaint.

Accordingly, the Agency’s final decision to dismiss the formal complaint on the grounds that it
was untimely filed is AFFIRMED.2

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

2 The Agency is reminded that under 29 C.F.R. 1614.403(e) it must submit the complaint file to
the Commission within 30 days of initial notification that the complainant has filed an appeal. In
this case, the Agency did not submit the file until July 16, 2019, more than four months after the
Commission’s notification of the appeal.
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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 (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. 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. If you file a request to reconsider
and also file a civil action, 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.
Carlton M. Hadden, Director
Office of Federal Operations

September 5, 2019
Date