2020001115•EEOC Appeal 2020001115
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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.
2020001115 2 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.
2020001115 3 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).
2020001115 4 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.
2020001115 5 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.
2020001115 6 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
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