U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Starr R.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120142090 Agency No. 200305862014101021 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated April 2, 2014, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. Upon review, the Commission finds that Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Telephone Advice Pharmacist at the Agency's facility in Jackson, Mississippi. On December 18, 2013, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On January 16, 2014, Complainant received a Notice of Right to File an Individual Complaint of Discrimination (hereinafter referred to as "Notice"). The Notice informed Complainant that she had fifteen days from the date of receipt of the Notice in which to timely file a formal complaint. On February 18, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability and reprisal for prior protected EEO activity. On April 2, 2014, the Agency issued a final decision dismissing the formal complaint on the grounds that it was not timely filed. The Agency determined that Complainant received the Notice on January 16, 2014, and that she had until February 3, 20142 to timely file her complaint. The Agency stated that Complainant's formal complaint was not filed until February 18, 2014, making it fifteen days late. Complainant had explained that the delay was the result of a misunderstanding by the Agency EEO Specialist on how to send Complainant notices and documents. Complainant explained that she authorized the Agency to transmit notices and documents to a home email address. However, the Agency EEO Specialist acknowledged that on January 16, 2014, the Notice was inadvertently sent to Complainant's work address instead. The Agency stated that despite this misunderstanding, it did not believe the action justified the tolling or waiving of the filing deadline. The instant appeal followed. On appeal, Complainant acknowledges that she did not file her complaint within 15 days, but contends that this was only because she was unaware that she had received the Notice. Complainant states that she only became aware of the Notice on February 14, 2014, and thus filed her complaint within 4 days of discovering the document. Complainant states that she included an explanation of the delay in her formal complaint. Complainant contends that the Notice was sent as "an intentional act of deception by the [Agency]." 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 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. Here, Complainant acknowledges in the filing of her formal complaint and on appeal that she filed her complaint beyond the fifteen day deadline. However, given the specific circumstances of this individual case, and noting the short time frame in which Complainant filed her complaint upon discovering the Notice, we determine that there is sufficient justification for the delay in the filing of the formal complaint. Accordingly, we REVERSE the Agency's final decision dismissing Complainant's formal complaint, and we REMAND this matter 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. 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 (M0815) 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 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, 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 (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 November 17, 2015 __________________ Date 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 fifteenth calendar day fell on Saturday, February 1, 2014. Because EEOC regulations state that when the fifteenth day falls on a weekend or holiday, the next business day is the deadline date, the Agency stated Complainant had until Monday, February 3, 2014 to send in her complaint. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120142090 2 0120142090