Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120142918 Agency No. 200305492013104122 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated July 28, 2014, dismissing her 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Patient Services Assistant at the Agency's Medical Center in Dallas, Texas. On August 9, 2013, Complainant contacted the EEO Counselor regarding her claim of unlawful discrimination based on her race (Black) and age (65) on the issue of training opportunities and overtime. While in counseling, she agreed to engage in the Alternative Dispute Resolution (ADR) process, and was informed by the counselor the ADR was also acceptable to the Agency. On October 17, 2013, Complainant received an email informing her that her EEO matter had been accepted for mediation. However, the record shows that the EEO Counselor mailed Complainant a Notice of Right to File (Notice) a formal complaint October 23, 2013. The Notice was received at Complainant's address on November 4, 2013. On March 19, 2014, Complainant emailed the Regional EEO Officer to inquire about the status of her EEO matter. In response, the Regional EEO Officer informed Complainant that she had received the Notice on November 4, 2013, and should have filed her formal complaint by November 19, 2013, in order to comply with the time limits. He provided Complainant with another copy of the Notice, which she received on April 4, 2014. He also informed her that that any subsequently filed formal complaint might be dismissed as untimely if the Agency found that Complainant's reason for the delay was insufficient. On April 16, 2014, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the bases of race and age when she was denied training, overtime and promotional opportunities. She also stated that subsequent to her initial contact, she has been subjected to unlawful harassment in retaliation for her protected EEO activity. The Agency initially defined the complaint to allege discrimination on the bases of age and race when: 1. On August 1, 2013, Complainant was denied the opportunity to work overtime; 2. On October 21, 2013, Complainant was denied training; 3. In February 2014, Complainant was charged with Absence without Official Leave (AWOL). 4. On March 20, 2014, during a staff meeting, Complainant was informed that she was not selected for the Advanced Medical Support Assistant position. 5. On March 31, 2014, Management would not allow Complainant to attend the luncheon with the Director of the North Dallas Veterans Healthcare System. The Agency found that Complainant was provided with a Notice of Right to File, which was received on November 4, 2013. However, Complainant did not file her formal complaint until April 2014. The Agency noted that Complainant's reason for the delay was that she did not understand the EEO complaint process. The Agency was not persuaded by Complainant's assertion. The Agency cited the Notice and its explanation that Complainant needed to file her formal complaint within 15 calendar days of its receipt. The Agency found that Complainant had attended EEO training several times during her employment. As such, the Agency concluded that Complainant knew or should have known about the time frame for filing her formal complaint. Therefore, the Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for failure to comply with the applicable time limits. Complainant appealed the Agency's dismissal. On appeal, Complainant asserted that she did not file her formal complaint because she believed she needed to wait until ADR occurred. She states she sought clarification, but did not receive it. She asserts that she called several times and had to follow up with the offices in Washington, D.C., when her calls were not answered. As such, she requested that the Commission reverse the Agency's dismissal. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so. Upon review of the record, we find that Complainant has shown that she was confused by the Agency's processing of her EEO complaint. The record showed that, by email dated October 17, 2013, the Agency informed Complainant that her claims had been accepted for mediation. However, prior to the mediation occurring and less than a week later, Complainant was provided with the Notice. Complainant asserts she found that situation confusing and attempted to clarify the situation through phone calls and emails with the Agency's EEO officials. The Agency issued Complainant a new Notice in April 2014. Complainant filed her EEO complaint within 15 calendar days of receiving the second Notice. The Commission has previously held that an agency may not dismiss a complaint based on a complainant's untimeliness, if that untimeliness is caused by that agency's action in misleading or misinforming the complainant. See Wilkinson v. U.S. Postal Service, EEOC Request No. 05950205 (March 26, 1996). See also Elijah v. Dep't of the Army, EEOC Request No. 05950632 (March 29, 1996) (if agency officials misled complainant into waiting to initiate EEO counseling, agency must extend time limit for contacting EEO Counselor). We find that Complainant was provided with contradictory information when she received the October 23 Notice less than a week after she was told in writing that the matter would go to mediation. Furthermore, Complainant has indicated that she tried to follow up with Agency officials. She did not get final clarification until the Regional EEO Officer emailed her in March 2014, and mailed her a new Notice in April 2014. Therefore, we find that the Agency's dismissal of the complaint pursuant to 29 C.F.R. § 1614.107(a)(2) was not appropriate. CONCLUSION Based on a thorough review of the record, we REVERSE the Agency's final decision and REMAND the complaint 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. § 1614.108et 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 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 January 22, 2015 __________________ Date 2 0120142918 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120142918