U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Aurore C,1 Complainant, v. Robert M. Speer, Acting Secretary, Department of the Army, Agency. Appeal No. 0120171991 Agency No. ARCESF16AUG0289 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated April 6, 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 During the period at issue, Complainant worked as a Civil Engineer at the Agency's U.S. Army Corps of Engineers in San Francisco, California. On August 15, 2016, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On March 30, 2017, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected her to discrimination on the basis of sex (female) when, on February 12, 2016, the Engineering Branch Chief notified Complainant of her termination from her status as a Supervisory Civil Engineer (a position she was promoted to in March 2015) and her return to a non-supervisory Civil Engineer position based on her failure to satisfactorily complete the one-year probationary period for the supervisory position. The record reflects that on March 22, 2016, Complainant appealed her termination from her supervisory status to the Merit System Protection Board (MSPB) alleging discrimination based on sex. On June 13, 2016, the MSPB dismissed the case for lack of jurisdiction. In its April 6, 2017 final decision, the Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on August 15, 2016, which it found to be well beyond the 45-day limitation period. Furthermore, the Agency stated that Complainant's EEO contact was not made within 30 days of her receipt of the MSPB's decision. Further, the Agency also dismissed the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(2), as untimely filed. The Agency found that a Notice of Right to File a Discrimination Complaint (hereinafter referred to as "Notice") dated February 15, 2017, was received by Complainant on February 15, 2017.2 The Notice notified Complainant that a formal complaint had to be filed within fifteen days of receipt of the Notice. However, the Agency found that Complainant waited until March 30, 2017, to file her formal complaint, which it found to be beyond the requisite fifteen days from the date of the receipt of the Notice. The instant appeal followed. ANALYSIS AND FINDINGS Untimely EEO Counselor contact EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the EEO Counselor within 45 days of the alleged discriminatory events, or the effective date of an alleged discriminatory personnel action. EEOC Regulation 29 C.F.R. § 1614.302(b) provides that if a person files mixed case appeal with the MSPB appeal, rather than a mixed case complaint, and the MSPB dismisses the appeal for lack of jurisdiction, then the agency shall notify the individual of the right to contact an EEO Counselor within 45 days of receipt of that notice from the agency. The date on which a person files his or her appeal with the MSPB shall be deemed the date of the initial EEO Counselor contact. 29 C.F.R. § 1614.302(b). The record indicates that Complainant was terminated from her supervisory status on February 12, 2016. Complainant appealed her termination based on discrimination to the MSPB on March 22, 2016. The filing of this appeal within 45 days of the effective date of the termination counts as Complainant's timely initial EEO counselor contact pursuant to 29 C.F.R § 1614.302(b). As such, the Agency erred in dismissing the complaint for untimely EEO counselor contact. Untimely filing EEOC Regulation 29 C.F.R. § 1614.106(b) requires that a complaint be filed within fifteen days of receipt of the Notice. However, where, as here, there is an issue of timeliness, '[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992). According to the Agency, the February 15, 2017 Notice informing Complainant that she had to file a formal complaint within 15 days of its receipt was received by her on March 9, 2017. Complainant filed her formal complaint on March 30, 2017, more than 15 days later. In its response to Complainant's appeal, the Agency stated that it made its first attempt to mail Complainant's Notice to her address of record on February 16, 2017, via certified mail. On March 6, 2017, Complainant emailed the Agency claiming she had not received her Notice. The Agency then stated that on March 9, 2017, Complainant received the Notice via certified mail, but does not provide adequate proof, such as a USPS tracking record, in support of its claim. We note the certified mail return receipt was returned to the Agency without Complainant's signature. Therefore, we find that the Agency has failed to properly support its dismissal of the formal complaint as untimely filed. The Agency final decision dismissing the formal complaint 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. 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 August 9, 2017 __________________ Date CERTIFICATE OF MAILING 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 The record reflects that in its response to Complainant's appeal, the Agency determined that Complainant received the Notice on March 9, 2017. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120171991