EEOC Appeal 2020001115

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Armand L.,1
Complainant,
v.
Matthew P. Donovan,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 2020001115
Agency No. 9X1M1901101
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from an Agency administrative determination, dated October 8, 2019, closing the
instant EEO matter for failure to pursue.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Manager at
the Agency’s Office of Scientific Research in Arlington, Virginia.
Complainant initiated EEO Counselor contact on June 25, 2019.
By email dated July 30, 2019, Complainant sent an email to his EEO Counselor (“E1”) requesting
the documents to file his formal complaint. E1 responded via email dated July 31, 2019, that the
date had not approached to send the formal complaint forms and that mediation was being
scheduled. Complainant responded via email dated August 2, 2019, that he had selected traditional
counseling rather than mediation.2 Complainant sent an email to E1 dated August 5, 2019, with
the subject line “formal complaint” which included multiple attachments (including one entitled
“formal complaint”) and stated, “see attachments, please let me know if there are additional
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 supports Complainant’s statement that he had selected traditional counseling.

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documents required.” E1 replied via email to Complainant on August 5, 2019, asking Complainant
to call him.
In an email dated August 7, 2019, E1 stated, “I am requesting a 30-day extension due to my
misunderstanding 	of 	which 	process 	you 	wanted 	to 	utilize…I 	missed 	that 	you 	elected
traditional…”. 	Complainant responded in an August 8, 2019 email that he did not agree to an
extension.
In an email dated August 12, 2019, Complainant asked E1 if his August 5, 2019 formal complaint
was received and processed. In an email dated August 13, 2019, E1 responded that the Notice of
Right to File (Notice) had been mailed and that Complainant had 15 days from receipt to submit
it back to the Agency. Complainant responded on August 14, 2019, to E1 that he had previously
submitted the formal complaint on August 5, 2019.
The record contains numerous other emails between Complainant and various other Agency EEO
officials in which the Agency EEO officials would advise Complainant to return the Notice and
file a complaint, and Complainant consistently responding that he had filed his formal complaint
on August 5, 2019. The record reflects that Complainant subsequently forwarded his August 5,
2019 complaint with the attachments to a senior EEO official. The senior EEO official responded
that she was unable to open one of the attachments. 	Complainant resent the attachments to her
twice and informed her if she still had difficulty opening the attachment to contact E1, to whom
Complainant had initially sent the formal complaint.
On October 8, 2019, the Director of the Agency’s EEO office issued Complainant a memorandum
that she was closing the instant matter. Therein, the EEO Director stated, in pertinent part, that
“[w]e have records that indicate your notice was mailed via certified mail on August 13, 2019 and
that it was signed for and delivered…on August 16, 2019…[Y]ou were provided an extension to
file, to ensure you were properly notified. To have filed a timely complaint, the complaint must
have been received by October 7, 2019, which was an extended date, as of the date of this notice
you have not responded. Please be advised the subject complaint is closed and no further action
will be taken.”
Complainant filed the instant appeal on November 25, 2019. Complainant reiterates that he filed
his formal complaint on August 5, 2019, after more than thirty days had passed from when he
initiated EEO counseling and the Agency failed to issue the Notice.
In response, the Agency asserts that Complainant’s appeal is untimely filed. Specifically, the
Agency stated that Complainant received the Agency’s Failure to Pursue/Closure letter on October
31, 2019. The Agency further asserts that, after numerous emails, Complainant never completed a
DD 2655 (the Agency’s formal complaint form). Finally, the Agency asserts that Complainant’s
complaint could be dismissed on other procedural grounds such as previously filing a grievance
on the same matter and untimely EEO Counselor contact.

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ANALYSIS AND FINDINGS
As an initial matter, we note that there is no Agency final decision in this case. However, we will
construe the Agency’s October 8, 2019 memorandum closing the instant matter as a final decision
dismissing Complainant’s complaint, with an appeal timely filed by Complainant to the
Commission for the following reason. 	The Agency’s letter closing the instant matter did not
contain appeal rights to EEOC, including the applicable time limit to file an appeal. In addition,
EEOC records reflect that Complainant filed his appeal on November 25, 2019, and not on
December 20, 2019, as set forth in the Agency’s response brief. Based on the foregoing, we find
Complainant’s appeal to be timely.
The Agency improperly closed the instant matter. Complainant initiated EEO contact on June 25,
2019. 	Commission regulations require that an Agency conduct its final interview with a
complainant and issue a Notice of Right to File a Formal Complaint within thirty days from when
a complainant initiated EEO contact. 29 C.F.R. § 1614.105(d). 	The Agency did not issue the
Notice to Complainant within thirty days from when Complainant initiated EEO contact. Thus,
Complainant filed his own formal complaint with the Agency via email on August 5, 2019, after
more than 30 days had passed from his initial EEO contact (and prior to the Agency issuing it
Notice). 	Based on the foregoing, we find that the Agency should have viewed Complainant’s
August 5, 2019 email as a formal complaint and processed it accordingly (i.e. sending Complainant
an acknowledgment letter and making a determination on whether to accept of dismiss his formal
complaint).3
We note that the Agency, in its brief in response to Complainant’s appeal, asserts that the instant
matter should be dismissed on other procedural grounds. However, because the other grounds for
dismissal were only raised on appeal, we decline to discuss them further.
Accordingly, we REMAND the instant matter to the Agency in order for it to process the instant
complaint in accordance with the ORDER below.
ORDER
Within thirty (30) days from the date this decision is issued, the Agency shall take the following
actions:
1. 	The Agency should issue Complainant an acknowledgment letter in the instant matter
regarding Complainant’s August 5, 2019 formal complaint.
2. 	Thereafter, 	the 	Agency 	should 	issue 	Complainant 	either 	a 	letter 	accepting
Complainant’s 	complaint 	for 	investigation 	or 	dismissing 	his 	complaint 	(with
appropriate appeal rights).
3 We remind Complainant that a hearing before an EEOC Administrative Judge may be requested
within 180 days after filing the formal complaint, 29 C.F.R § 1614.108(h).

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The Agency shall provide the Commission with documentation that it has taken the following
actions as set forth below in the paragraph entitled “Implementation of the Commission’s
Decision.”
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. 	Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.

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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.

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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
September 30, 2020
Date