COMPLAINANT, v. JOHN M. MCHUGH, SECRETARY, DEPARTMENT OF THE ARMY, AGENCY. Appeal No. 0120120759 Agency No. ARBELVOIR11JUL03347 May 1, 2012 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dismissing a formal com-plaint 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. BACKGROUND During the period at issue, Complainant worked as a Clinical Social Worker for the Warrior Transition. Unit at Fort Belvoir, Virginia. She had been hired into this position in February 2011 through a staffing firm called Central Care, Inc. On September 28, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African American) and retaliation when: a. on or about April 18, 2011, she received a letter stating that the Agency had indefinitely suspended her privileges to see patients at Ft. Belvoir; and b. since February 2011, she was subjected to harassment by Agency management including being denied training and adequate work space to see patients. In its final decision dated November 9, 2009, the Agency dismissed the instant formal complaint on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a) (2). According to the Agency, Complainant did not contact one of its EEO counselors until July 14, 2011, more than 45 days from when she was notified that her privileges were suspended. The instant appeal followed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. On appeal, Complainant submits an affidavit stating that one day before the notice of the suspension of her privileges, on April 17, 2011, she contacted an Agency's EEO Counselor regarding her claims of discriminatory harassment by Agency management, but was informed by the EEO Counselor that she could not assist her and that she needed to contact Central Care, Inc. with her concerns. It is undisputed between the parties that Complainant, through her attorney, contacted sent a letter to Central Care, Inc. on May 15, 2011, less than a month after her privileges were suspended, and alleged that she believed she had been subjected to race discrimination and retaliation when she was harassed and her privileges suspended by Agency management. Complainant states in her affidavit that she expected that her complaint was being referred to the Agency. However, it was not until June 17, 2011, when she sought the status of her complaint that she learned that Central Care, Inc. did not investigate the matter or refer her complaint to the Agency. On July 14, 2011, Complainant initiated contact again with an Agency EEO counselor to pursue the matter. Based on these facts, we are persuaded that it is appropriate to extend the 45-day limitation period in this case. Complainant acted reasonably in first lodging her complaint with Central Care, Inc., because she had been advised to do so by an Agency EEO counselor. Both her initial contact with an Agency counselor on April 17, 2011, and her contact with Central Care, Inc. raising her claims of discrimination were made within the 45-day limitation period. It was not until she learned, in June 2011, that Central Care, Inc. had not forwarded her complaint to the Agency that she again sought EEO counseling with the Agency on July 14, 2011. The Commission has held that, where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)). The Agency has failed to do so. In view that claims (a) and (b) encompass a claim of discriminatory harassment, the Commission finds that under these particular circumstances, sufficient reasons exist for waiving the time limits and remanding Complainant's claims (a) and (b) for investigation. CONCLUSION Based upon a thorough review of the record, and for the foregoing reasons, it is the decision of the Equal Employment Opportunity Commission REVERSE the Agency's Final decision and REMAND the formal complaint 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 et seq. 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 sub-mitted 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) *4 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