U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Celeste P,1 Complainant, v. Sean J. Stackley, Acting Secretary, Department of the Navy, Agency. Appeal No. 0120171542 Agency No. DON166279303433 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated February 17, 2017, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Contract Specialist at the Agency's Supervisor of Shipbuilding, Conversion, & Repair facility (facility) in Newport News, VA. On December 23, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American) and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when: 1. In mid-January 2016, a Supervisor (S) informed Complainant that he wanted her to attend a class at Fort Belvoir starting on January 25, 2016 on short notice when Complainant's classes were already scheduled; 2. Complainant was not provided training while similarly situated colleagues were; 3. Complainant received a low progress rating on her mid-term and annual performance evaluations, which were written by S and not Complainant's first line supervisor; 4. In June 2016, Complainant received several emails from S directing her to cancel confirmed reservations in classes and instead to attempt walk-in status for the same courses; 5. In July 2016, S allegedly counseled Complainant for leaving a class without instructor permission and returning to the facility; 6. On July 18, 2016, S issued Complainant a letter of reprimand; 7. Complainant was retaliated against for filing a Department of Labor USERRA complaint. The Agency dismissed the claims for untimely filing of the Formal complaint. In addition, the Agency found that claim No. 7 failed to state a claim. 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 (Notice). 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. In its Dismissal, the Agency found that Complainant received the Notice on December 7, 2016 but the Formal complaint was not filed until December 23, 2016, which is one day beyond the 15-day limitation period. On appeal, Complainant argues that she sent an email to the Agency EEO Specialist (ES) on December 10, 2016 requesting an extension because she was on temporary duty (TDY) in Huntsville, Alabama until December 23rd and all her EEO documentation was in a locked drawer at her normal workplace in Newport News, Virginia. Complainant sent a second email on December 12 explaining she was confused about the filing process and questioning the characterization of her complaint in the Agency's Notice. Complainant received a response from ES that same day but the email did not address her request for an extension. Complainant then sent a third email to ES on December 15, reminding ES of her initial extension request and again requesting an extension. ES responded that same day explaining that he had been traveling himself, that he could not grant an extension "and that [Complainant's extension request] could only be forwarded up to [sic] the EEO chain." Complainant maintains she sent one more email on December 20 explaining "I have filled out the form but my supporting documents are at work in a secure place. Can I submit the form and give you my supporting documentation when I return from TDY to meet the deadline?" Complainant maintains she received no response to this request and so she emailed her Formal complaint form to the Agency EEO department on December 23, 2016. Complainant has submitted copies of the emails in question. Complainant's evidence shows that, prior to the expiration of the deadline, she diligently made numerous attempts to contact the EEO department to seek an extension because, through no fault of her own, she was away from her regular workplace and would have no access to her complaint documentation until the 15-day period had expired. Complainant has further shown that she sought to timely file the form as best she could without having access to all her documentation and asked if she could submit her supporting documentation at a later date, something which is permitted under the regulations. See 29 C.F.R. § 1614.403(d)(Complainants may file supporting briefs within 30 days of filing the complaint). The record does not show Complainant received any response to this inquiry. As noted above, the time limit for filing a Formal complaint is subject to waiver, estoppel and equitable tolling and in view of the fact the Agency placed Complainant on TDY and did not tell her she could file her supporting documentation at a later date, we find that the Agency is estopped from finding that her Formal complaint was untimely filed. With regard to claim no. 7, the Agency dismissed this claim on the additional ground that Complainant failed to state a claim because claims alleging retaliation for filing a USERRA complaint are not covered under EEO regulations. Following a review of the record we agree that Complainant fails to state a claim. CONCLUSION We therefore AFFIRM the Agency's Final Order in part and REVERSE in part, and we REMAND this case to the Agency to take remedial action in accordance with this decision and the Order below. ORDER The Agency is ordered to process the remanded claims (Claims 1 through 6 inclusive) 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 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 (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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. If you file a request to reconsider and also file a civil action, 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 August 3, 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 0120171542 5 0120171542