U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sandra H.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (U.S. Mint), Agency. Appeal No. 0120170999 Agency No. MINT-16-0688-F DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated November 29, 2016, dismissing her complaint alleging 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. BACKGROUND During the period at issue, Complainant worked as a Supervisory Police Officer at the Agency's facility in Philadelphia, Pennsylvania. On November 14, 2016, Complainant filed a formal complaint alleging that she was subjected to discriminatory harassment on the basis of sex (female) when: A) During a celebratory dinner in October 2012, a colleague), later promoted to the position of Lieutenant ("the Lieutenant"), talked to Complainant about "dungeons" which he described as a place people go for erotic sexual experiences, and offered to buy Complainant a pair of boots. B) Over the year, the Lieutenant directed inappropriate comments, and gestures towards Complainant and used a number of derogatory terms to refer to Complainant including troublemaker, bully, weak, incompetent, and not dominant, told Complainant that no one likes her and she does not meet his standards, among other things, and told one of her colleagues that she could not do her job C) The Lieutenant made it difficult for Complainant to order uniforms. D) After Complainant told the Lieutenant that she was not interested in going to the "dungeon/dominatrix or being his sex partner" in March 2014, the Lieutenant handed Complainant nine pages of literature that included a menu of activities that are available at the dungeon, and the Lieutenant informed Complainant that he was looking for another partner because his previous partner moved away with her boyfriend. E) On October 26, 2015, the Lieutenant engaged in behavior that Complainant characterized as chastising her in front of a co-worker. F) In November 2015 through January 2016, the Lieutenant engaged in behavior that Complainant characterized as singling her out, intimidating her, and assassinating her character to such an extent that her work performance was affected. G) On June 15, 2016, the Lieutenant came into the office of Complainant's sergeant and stayed there talking and laughing with another officer, despite the fact that Complainant was present and he had been instructed by an inspector to stay away from her. The record shows that sometime in early 2016 before seeking EEO counseling, Complainant had raised her allegations of harassment by the Lieutenant with management officials, who initiated an internal investigation into the matter. The inspector referenced in allegation (G) was involved in this inquiry. In its final decision, the Agency dismissed Complainant's complaint on the grounds of untimely EEO Counselor contact. The Agency reasoned that the last alleged incident occurred on June 15, 2016. Thus, the Agency found that Complainant should have initiated contact by August 1, 2016, but that she did not initiate EEO contact until two weeks later, on August 15, 2016. The instant appeal followed. On appeal, Complainant, through her attorney, requests that we reverse the Agency's final decision. Complainant's attorney sets forth various reasons why the time limit should be extended. Specifically, Complainant's attorney states that Complainant was following the chain of command, that after the Agency's internal investigation was closed that she asked the Field Chief of Police how to file an EEO complaint and he did not have knowledge of the process, that she feared retaliation and being black balled, that she was stressed, and that she thought she had 45 days from receiving the Agency's response to her FOIA request because she needed a factual record to support her claim. In response, the Agency requests that we affirm its final decision. In addition, it asserts that the instant matter does not warrant an extension of the applicable time limit. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The record shows that Complainant's first contact with an EEO counselor in this matter was two weeks beyond this deadline. EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Complainant asserts that she was not aware of the 45-day limitation period for seeking EEO counseling, but requested counseling shortly after she was informed by her superior, the Field Chief, that the management investigation into her harassment allegations against the Lieutenant had been closed.2 We acknowledge that the record reflects that Complainant's facility had EEO posters on display setting forth the applicable time limit and that Complainant attended No Fear Act training. Usually this would be sufficient to find that Complainant had constructive knowledge of the relevant time limitations. However, here Complainant states that she asked the Field Chief about the time limits for the EEO process when he told her the management inquiry was closed and he responded that he had no knowledge of the EEO process or the applicable time limits. We note that the record is devoid of evidence that the Field Chief made any effort to provide any information on the EEO process subsequent to Complainant's request. Based on the specific circumstances of this case, we exercise our discretion in this matter and waive the applicable time limit, noting Complainant's delay was relatively brief (two weeks). EEOC Regulation 29 C.F.R. § 1614.604(c) provides that all time limits are subject to waiver, estoppel, and equitable tolling. Accordingly, we REVERSE the Agency's final decision and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (E1016) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et 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 was issued. 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 was issued, 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 (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 May 5, 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 We note that a named individual (M1) was assigned to conduct the management inquiry pertaining to Complainant's claim of harassment. In an email dated February 16, 2016, to an Inspector (I1) and to the Chief of Police, M1 stated, in pertinent part, that "sufficient information has been developed that warrants further investigation." In a May 6, 2016, memorandum from I1 to the Field Chief of the Mint Police, I1 stated M1's report was discussed with various individuals including the Chief of the Mint Police and an Agency attorney and that they believed there were deficiencies with M1's report. The memorandum further provides that M1 did not agree with human resources and an Agency attorney that her report was deficient. It appears from the record before us that I1 provided his own analysis of the harassment claim and that the management inquiry was closed. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120170999 6 0120170999 7 0120170999