U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Estefana M,1 Complainant, v. Sean J. Stackley, Acting Secretary, Department of the Navy, Agency. Appeal No. 0120170646 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated October 28, 2016, dismissing her matter 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an employee at the Agency's Medical Care Recovery Unit facility in Pensacola, Florida. On August 9, 2016, Complainant contacted the Agency's EEO office alleging that she had been subjected to discriminatory harassment by her supervisor on the bases of her sex (female) and disability. She asserted that the ongoing harassment had taken a toll on her, including exacerbating her chronic medical condition. Therefore, she asked that she be allowed to telework four out of the five days a week, or be considered for a transfer. It appears that the Agency's EEO office processed Complainant's claims through its reasonable accommodation request process only and did not also process it as an EEO complaint under the procedures detailed in 29 C.F.R. Part 1614. There was a subsequent exchange with Complainant seeking documentation to support her reasonable accommodation request, as well as her claims for leave under the Family Medical Leave Act and a claim with the Office of Workers' Compensation Programs. By letter dated October 28, 2016, the Agency's Claims and Tort Litigation Director issued Complainant a letter stating that they had determined that Complainant's claims of a hostile work environment were not substantiated. Complainant submitted the instant appeal based on this letter. ANALYSIS AND FINDINGS When a Complainant contacts an Agency EEO office with the intention to file an EEO complaint, the EEO office has a duty to provide EEO counseling. 29 C.F.R. § 1614.105. If the dispute has not been resolved to the satisfaction of the aggrieved person, the EEO Counselor must tell the aggrieved person that she has the right to pursue the claim further through the formal complaint procedure. It is the aggrieved person, and not the EEO Counselor, who must decide whether to file a formal complaint of discrimination. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 2-17 (as revised Aug. 5, 2015). The EEO Counselor shall not attempt in any way to restrain the aggrieved person from filing a complaint. 29 C.F.R. § 1614.105(g). Here, the Agency violated these requirements. While the Agency believed, based on its internal investigation, that Complainant's complaint of harassment was subject to procedural dismissal, this was not a reason to refuse to provide EEO counseling. The Agency also had a duty, unless the parties otherwise resolved the matter, to issue the Complainant a notice of right to file a complaint. 29 C.F.R. § 1614.105. The time to dismiss a complaint pursuant to 29 C.F.R. § 1614.107, if the Agency finds it has reason to do so, is after a complainant files a formal complaint, not before. Such a dismissal must include appeal rights to this office. Dismissing Complainant's informal complaint without appeal rights violated the above regulations and EEO MD-110. Upon review of the record, it appears that Complainant believed that she was filing an EEO complaint when she sent the "complaint to employer" document in August 2016. Clearly, based on the emails provided by the Agency, the EEO Office received these documents and understood Complainant's intent to pursue an EEO complaint. However, the Agency did not process her complaint within the EEO complaint process. Instead, the Agency conducted an internal investigation and issued a letter to her finding her claim was unsubstantiated. Prior to a request for a hearing in on an EEO complaint, the Agency may dismiss an EEO complaint on grounds set forth in 29 C.F.R. § 1614.107(a). However, in this case, the Agency did not permit Complainant to proceed through the 29 C.F.R. Part 1614 process. The Agency, in essence, dismissed the matter prior to Complainant being provided with a right to file a formal complaint. We find that the Agency's action was in error. The Agency is required to provide Complainant with EEO counseling and issue a notice of right to file a formal complaint if the matter cannot be resolved through counseling. It cannot preclude Complainant from filing her formal complaint, and can only dismiss a matter, pursuant to 29 C.F.R. § 1614.107(a), once a formal complaint has been filed. Moreover, when an agency dismisses a complaint under 29 C.F.R. § 1614.107(a), the Agency must issue a final decision. The final decision must consist of the rationale for dismissing any claims in the complaint. The final decision shall contain notice of the right to appeal the final action to the Commission, the right to file a civil action in a U.S. District Court, the name of the proper defendant in any such lawsuit, and the applicable time limits for appeals and lawsuits, It should also include a copy of EEOC Form 573, Notice of Appeal/Petition, attached to the final decision/determination. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 5-34 (Aug. 5, 2015). Here, the Agency's dismissal of the pre-complaint matter failed to adequately meet these criteria for a proper final decision. As the Agency has improperly processed the matter at hand and failed to provide Complainant the opportunity to file a formal complaint, we find that there was no appropriate dismissal to address. Therefore, we shall remand the matter for proper processing. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's dismissal of the matter at hand and REMAND the matter for further processing in accordance with the ORDER below. ORDER The Agency shall process Complainant's pre-complaint contact within 15 calendar days of the date of this decision. For purposes of timeliness, the Agency shall consider the date of contact to be August 9, 2016. At this time, Complainant can bring to the EEO Counselor's attention any additional claims or incidents that have occurred since her initial date of contact. If within 30 calendar days the matter is not resolved informally and the parties have not agreed to an extension, the Agency shall provide Complainant a notice of right to file a formal complaint. If she files a formal complaint, it shall be processed pursuant to the provisions of 29 C.F.R. Part 1614. A copy of the Agency's EEO counseling report and notice of right to file a formal complaint (unless the matter has been resolved) must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 September 12, 2017 __________________ 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 0120170646 2 0120170646