U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Keri C.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense, Agency. Appeal No. 0120131986 Hearing No. 570-2012-00961X Agency No. 2011-OSD-045 DECISION Complainant filed an appeal with this Commission from the Agency's Final Decision dated March 7, 2013, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. This appeal is accepted pursuant to 29 C.F.R. § 1614.403(a). Upon review, the Commission VACATES and REMANDS the Final Agency Decision (FAD) for the following reasons. ISSUES PRESENTED The issues presented before the Commission are: (1) whether the Agency erred by taking final action on the merits of Complainant's complaint under 29 CFR 1614.110(b); and (2) whether the AJ erroneously dismissed Complainant's hearing request for lack of "jurisdiction." BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Security Specialist at the Agency's Office of the Secretary of Defense, Office of Military Commissions, in Washington, District of Columbia. On June 28, 2011, Complainant filed a formal complaint alleging discriminatory harassment on the bases of race (African-American), sex (female), and disability (physical). The Agency accepted the complaint for investigation. On May 29, 2012, upon completion of the investigation, the Agency forwarded Complainant a copy of the report of investigation (ROI), which Complainant received on June 1, 2012. It is unclear from the record as to whether, at this time, Complainant was informed of her right to request a hearing or an immediate Final Decision from the Agency based on the record. The Agency maintaining that Complainant did not request a hearing until July 17, 2012, on July 18, 2012, notified the AJ that it was "rescinding" Complainant's request for a hearing on the ground that Complainant's request was untimely filed. See Agency's July 18, 2012, Rescindment of Hearing Request. There is no indication that the Agency provided a copy of this letter to Complainant. Subsequently, citing 29 C.F.R. § 1614.110(b), the Agency issued a FAD finding that Complainant had not established discrimination. Complainant received the Agency's decision on March 29, 2013. The FAD is dated March 7, 2013, but the certificate of service indicates that the FAD was mailed on March 18, 2013. Thereafter, the AJ dismissed Complainant's case for lack of jurisdiction. See Administrative Judge's April 29, 2013, Decision (AJ Decision). On April 29, 2013, Complainant filed this appeal. CONTENTIONS ON APPEAL On appeal, Complainant contends she went to the Agency's EEO Office on June 15, 2012, and informed the EEO Deputy Director (EEODD) that the ROI she received on June 1, 2012, did not contain a cover letter notifying Complainant of her rights and responsibilities, at which point, the EEODD provided her a copy, dated May 29, 2012, but failed to include the form to request a hearing. See Complainant's May 28, 2013, Appellant's Brief in Support of Appeal (Complainant's Brief) at 2. Complainant further contends that, after consulting with an attorney on July 2, 2012, about the possibility of representation during the hearing phase of her case, she returned to the Agency's EEO office on July 3, 2012, received a hearing request form and filed her request for a hearing within 30 days, leaving a signed copy with the agency's EEO office and mailing a copy to the appropriate EEOC office. Complainant's Brief at Statement of Relevant Facts at 3. Complainant closes by contending that her request for a hearing is timely. We note that the Commission's internal hearing records indicate Complainant requested a hearing on July 17, 2012. For its part, the Agency contends that Complainant's appeal to the Commission is untimely. To support this contention, the Agency contends that Complainant received the Agency's Final Decision on March 29, 2013, and that, in order to be timely, the appeal had to be filed no later than April 29, 2013. See Agency's Brief in Opposition to Appeal (Agency Brief) at 1. The Agency further contends that Complainant's hearing request was untimely. Specifically, the Agency contends that Complainant received her notice of right to request a hearing on May 29, 2012, but did not complete a Request for Hearing form until July 6, 2012, and was therefore beyond the 30 days to request a hearing allowed by Commission's regulations. The Agency, however, concedes that the EEO office provided the request form to Complainant on July 6, 2012. ANALYSIS AND FINDINGS Untimely Appeal The Agency argues on appeal that, in order to be considered timely, Complainant's appeal had to be filed no later than April 29, 2013, but instead was filed on May 28, 2013. See Agency Brief at 1-2. Commission records indicate that Complainant's appeal was filed on April 29, 2013. The appeal is therefore timely. Complainant's Hearing Request Based on the record before us, it is unclear as to whether Complainant's request for a hearing was untimely considering the inadequacies and inconsistencies of the record and the parties' opposing arguments. The record is not sufficiently clear to allow the Commission to make a determination either way. What is clear, however, is that the AJ dismissed Complainant's hearing request upon the Agency's "Rescindment of Complainant's Hearing's Request." What is also clear is that the AJ Decision merely states, in relevant part, "This [c]omplaint is dismissed due to lack of jurisdiction. The Agency rescinded its transmission of Complainant's request for a hearing due to the untimely request for hearing and [the Agency's issuance of] a Final ... Decision, which included appeal rights." See AJ Decision at 1. Our regulations do not provide a mechanism by which the Agency can rescind a hearing request once such a request is made, but instead vest the AJ with full jurisdiction over the underlying complaint. See 29 C.F.R. § 1614. 109 (a). Accordingly, the Agency had no authority to "rescind" Complainant's hearing request, and we find that the AJ's refusal to accept jurisdiction over Complainant's complaint constitutes an error of law. In this regard, we note that none of the time frames in the administrative process can be treated as "jurisdictional," because 29 C.F.R. § 1614.604(c) states that all regulatory time frames are all subject to waiver, estoppel and equitable tolling, which are doctrines that do not apply to timeframes affecting jurisdiction. CONCLUSION Based on the foregoing, we find that Complainant's appeal to this Commission was timely and that the AJ's refusal to accept jurisdiction over Complainant's claim once a request for hearing was made constitutes an error of law. Therefore, we VACATE the Final Agency Decision and REMAND this matter for processing in accordance with this decision and the Order below. ORDER The Agency shall submit to the Hearings Unit of the EEOC Dallas District Office the request for a hearing within fifteen (15) calendar days of the date this decision is issued. The Agency is also directed to submit a copy of the complaint file to the EEOC Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. 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 Hearings Unit. Thereafter, the AJ assigned to this matter shall process the complaint in accordance with 29 C.F.R. § 1614.109, and the agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. 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 (M0416) 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. The requests 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 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 __12/12/16________________ 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 0120131986 2 0120131986