U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Theresia B,1 Complainant, v. John F. Kelly, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 0120171839 Agency No. HS-TSA-26290-2016 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated March 31, 2017, dismissing a formal 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 During the relevant period, Complainant worked as a Program Analyst and was assigned to Epply Airfield in Omaha, Nebraska. On May 9, 2016, Complainant contacted an EEO Counselor and alleged that the Agency subjected her to discrimination based on her sex and age. On August 4, 2016, the EEO Counselor issued the Notice of Right to File a Complaint (hereinafter referred to as "Notice"), indicating that a formal EEO complaint should be filed within fifteen calendar days of receipt of the Notice. Complainant filed the instant formal complaint on September 25, 2016. On March 31, 2017, the Agency issued a final decision. The Agency dismissed Complainant's formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), on the grounds that it was untimely filed. Specifically, the Agency determined that the September 25, 2016 formal complaint was filed more than fifteen days after it determined that Complainant had received the Notice on August 4, 2016. The instant appeal followed. 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. The record establishes that the Notice was sent to Complainant by email on August 4, 2016, but remained unopened until September 12, 2016. On appeal, Complainant acknowledges receiving the Notice (by email) dated August 4, 2016 "but did not open it until September 12, 2016. I knew I had 15 days after the file was opened to file my formal complaint...I filed my formal complaint on September 25, 2016 within the time allotted." Complainant states that she was told by her EEO counselor "that I had 15 days to file once I opened the [email] file. Her quote was: 'don't open the email until you are ready, because the clock starts to tick.' I have attached statements from my two former Human Resource Specialists backing up this statement." The record contains a copy of the Human Resource Specialist (HR Specialist)'s email dated April 25, 2017. Therein, the HR Specialist states, "this email is to make my statement regarding your EEO case with TSA. I heard you discuss with me multiple times that you had been told by [EEO counselor], that you would have 15 days to respond to the email attachment she had sent you once you opened it. I had asked you several times after [EEO counselor] sent you the email if you had responded and you stated that you hadn't opened it because you did not want the 15 day timeframe to expire so you were going to wait to open the document until you had the entire package ready to go so you would not miss the cut-off. During the time frame from when [EEO counselor] had sent you the email and your response you had several life events that were taking place so that was delaying your opportunity to get your package/response organized. I know you had to move your Mom into your house and get her house ready to sell, your son-in-law had a heart transplant and had a couple serious close calls with rejection of the heart after the transplant." While the Agency was correct in its conclusion that Complainant filed her formal complaint more than 15 days after she received an email containing the Notice, we find ample justification to excuse the asserted delay based on the unique facts of this case. Complainant has adequately established that she had been provided an admonition by an Agency EEO official that she should not open the emailed Notice until ready to do so, because at that point, the 15-day limitation would "start to tick." In good faith, Complainant awaited until mid-September 2016 to open the Notice. In light of the questions that the record present about when Complainant determined that the 15-day limitation period began, and the confusion that resulted, we find reason under the particular circumstances of this case to exercise our discretion to excuse any delay here in the filing of the formal complaint. See 29 C.F.R. ? 1614.604(c). The Agency's final decision to dismiss the formal complaint on the grounds of untimely filing is REVERSED. The formal complaint is REMANDED 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 (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 July 18, 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 0120171839 2 0120171839