Complainant v. John M. McHugh, Secretary, Department of the Army (National Guard Bureau), Agency. Appeal No. 0120132116 Agency No. T-2013-01 DECISION Complainant filed an appeal with this Commission regarding her class 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. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission VACATES the Agency's final decision. ISSUE PRESENTED The issue presented is whether the Agency properly dismissed Complainant's class complaint as untimely because: 1) it was submitted a day before the Counseling Interview by phone; 2) it was submitted before receiving the Notice of Right to File; and 3) the Agency's complaint form was not used. BACKGROUND During the period at issue, Complainant worked as a Human Resource Specialist at the Agency's California Army National Guard in Sacramento, California. On January 8, 2013, Complainant contacted an EEO Counselor with the Agency, wanting to file a class complaint on behalf of a number of Agency employees. On February 6, 2013, Complainant sent the Agency an e-mail with her signed class complaint attached. In her e-mail to the Agency, Complainant explained to the Agency that the attached signed document constituted her formal class complaint and that she wished to move forward with class certification. The next day, on February 7, 2013, a final EEO Counseling Interview, including a Notice of Right to File a Formal Complaint, was held over the telephone Complainant and an EEO Counselor. Therein, Complainant apparently was advised to fill out the National Guard Bureau (NGB) "form 713-5-5," the Agency's form to file a complaint of discrimination. Complainant also was apparently advised that she must file the complaint within 15 days from the date of the interview. A copy of the EEO Counseling Interview and the Notice of Right to File were also mailed to Complainant on February 7, 2013. Subsequently, on March 19, 2013, Complainant requested that the Agency forward her class complaint to an EEOC Administrative Judge (AJ) for certification. The Agency, however, notified Complainant via letter dated March 25, 2013, that she had missed the 15-day deadline to file a formal complaint, and therefore no complaint existed to forward. Subsequently, on April 11 and 12, 2013, Complainant sent e-mails to the Commission's San Francisco District Office, alleging that the Agency had refused to accept her class complaint. Thereafter, an EEOC AJ responded to Complainant's e-mails, writing, "I understand that the Agency does not consider your signed February 6, 2013, document to constitute a class complaint because . . . you submitted it before the February 7, 2013, formal EEO Counseling Interview by telephone . . . ." The AJ wrote that she could not assert jurisdiction over the matter, given the present procedural posture. The AJ advised Complainant to file her complaint with the Agency using the Agency's designated form. The AJ further wrote to Complainant that, once the Agency received her complaint, the Agency must: ... issue a final order of dismissal which you can appeal to the EEOC's Office of Federal Operations (OFO), or it will accept your complaint in light of the fact that your failure to file a timely complaint was due to your good faith belief that you had already filed a formal class complaint which met all the Agency's requirements on February 6, 2013. As the AJ advised, Complainant, on April 12, 2013, used the Agency's designated form to file her class complaint. Nevertheless, according to the Agency, it declined to accept Complainant's complaint because it was untimely. However, the Agency simply closed the matter and failed to issue a final order of dismissal with appeal rights to the Office of Federal Operations (OFO). ANALYSIS AND FINDINGS As an initial matter, we acknowledge that the instant record does not contain a document entitled "final order" or "final decision" from the Agency. However, in the interest of judicial economy, we find that the Agency's lengthy response to Complainant's appeal can reasonably be construed as the equivalent of a final decision. See Duran v. Dep't of Air Force, EEOC Appeal No. 0120131046 (May 24, 2013) (Commission construed Agency's e-mail correspondence to complainant's counsel as final decision for the purpose of judicial economy); see also Johnson v. Dep't of Interior, EEOC Appeal No. 0120132118 (Sep. 9, 2013) (where Agency failed to issue decision on complainant's breach allegation, Commission treated Agency's appeal submission as its final decision). The Agency, in its response, argues that Complainant failed to timely file her class complaint within 15 days of receiving the Agency's Notice of Right to File pursuant to 29 C.F.R. § 1614.204(c)(2). The Agency indicated that Complainant received the notice on February 9, 2013, but did not actually file the class complaint until April 12, 2013, well outside the 15-day limitation. The Agency also argues that Complainant's complaint involves military matters and is duplicative of a previous complaint that she filed. Nevertheless, we find that the Agency improperly dismissed Complainant's class complaint. We note that, in her e-mail to the Agency dated February 6, 2013, Complainant explained to the Agency that the attached signed document constituted as her formal class complaint. However, the Agency essentially found that the February 6, 2013, document did not constitute as a class complaint because: 1) it was submitted a day before the Counseling Interview by telephone; 2) it was submitted before receiving the Notice of Right to File; 3) and the Agency's complaint form was not used. However, we note that 29 C.F.R. § 1614.204(b) specifically provides: An employee or applicant who wishes to file a class complaint must seek counseling and be counseled in accordance with § 1614.105. A complainant may move for class certification at any reasonable point in the process when it becomes apparent that there are class implications to the claim raised in an individual complaint. If a complainant moves for class certification after completing the counseling process contained in § 1614.105, no additional counseling is required. Here, beginning on January 8, 2013, Complainant sought counseling with the Agency, indicating that she wished to file a class complaint. Later, on February 6, 2013, Complainant forwarded her signed class complaint to the Agency, communicating that she wished to move forward with class certification. Therefore, at that point, the Agency should have forwarded the February 6, 2013, class complaint to the EEOC for the purpose of class certification by an AJ pursuant to § 1614.204(b). We note that § 1614.204(c)(1), only provides that the "class complaint must be signed by the class agent (the complainant) or a class representative and must identify the policy or practice adversely affecting the class as well as the specific action or policy affecting the class agent." As with an individual complaint, Complainant need not use the Agency's designated complaint form to file a class complaint. We further note that before the complaint can be dismissed for reasons such as for failure to state a claim, the Agency is obligated to refer the complaint to an EEOC AJ for a determination on the issue of class certification. See 29 C.F.R. § 1614.204(d)(1). The Agency's decision to dismiss the complaint was therefore improper. CONCLUSION Accordingly, the Agency's decision dismissing complainant's complaint is VACATED. We REMAND the matter to the Agency for further processing as directed in the Order herein. ORDER The agency shall submit a copy of the complaint file to the EEOC District Office within 30 calendar days of the date this decision becomes final for assignment to an EEOC Administrative Judge for further processing pursuant to 29 C.F.R. § 1614.204(d)(1) et seq. The agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the EEOC District Office. After receiving a decision from the EEOC Administrative Judge, the agency shall take final action on the matter in accordance with 29 C.F.R. § 1614.204(d)(7). 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 July 31, 2015 Date 2 0120132116 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120132116