U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Felton A.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120180621 Agency No. 200H-0757-2017104353 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency final decision, dated November 8, 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Surgical Health Technician at the Agency's Columbus Ambulatory Care Center in Columbus, Ohio. Believing that he was subjected to a hostile work environment, Complainant contacted an EEO Counselor. Informal efforts to resolve Complainant's concerns were unsuccessful. On September 27, 2017, Complainant filed a formal complaint based on sex. In its final decision, the Agency framed the claim as follows: Whether Complainant was subjected to a hostile work environment as evidenced by the following events 1. On May 19, 2017, Complainant was issued a proposed suspension; and, 2. On June 27, 2017, Registered Nurse [W] issued Complainant a three-day suspension for unprofessional conduct. The Agency dismissed the formal complaint for failure to state a claim. The Agency reasoned that the rescinded proposed reprimand, the proposed suspension, and subsequent three-day suspension were not physically threatening or humiliating, nor did they interfere with work. The Agency found that these matters did not create a hostile or abusive work environment2. Additionally, Agency dismissed the formal complaint for being untimely filedy. According to the Agency, the Notice of Right to File Individual Discrimination Complaint (hereinafter "Notice") was sent, via e-mail, to Complainant on September 11, 2017. Complainant, however, filed his formal complaint on September 27, 2017, one day beyond the fifteen-day time limitation. ANALYSIS AND FINDINGS Untimely Filed Complaint EEOC Regulation 29 C.F.R. § 1614.106(b) requires the filing of a written complaint with an appropriate agency official within fifteen (15) calendar days after the date of receipt of the notice of the right to file a formal complaint. The regulations further provide that a document shall be deemed timely if it is received or postmarked before the expiration of the applicable filing period, or, in the absence of a legible postmark, if it is received by mail within five days of the expiration of the applicable filing period. 29 C.F.R. § 1614.604(b). 29 C.F.R. § 1614.107(a)(2) provides that the agency shall dismiss a complaint that fails to comply with the applicable time limits contained in §§ 1614.105, 1614.106, and 1614.204(c), unless the agency extends the time limits in accordance with § 1614.604(c). In the instant case, the Agency determined that it e-mailed Complainant the Notice on September 11, 2017 at 1:49 p.m. and that it was delivered at 1:50 p.m. Complainant disputes the Agency's assertion. Complainant argues that he did not receive the notice until September 27, 2017, whereby he executed and filed the form on the same day. In support, he provides a copy of a September 25, 2017 e-mail from the EEO Counselor stating: "Complainant is currently in the Informal Counseling - ADR stage. Unless he has participated in ADR/Mediation . . . he would not receive a [formal complaint form] yet. Otherwise, he still has 35 days in the informal stage." Within one hour, Complainant's non-attorney representative replied stating "ADR was unsuccessful. Please send the [formal complaint form]." The Agency acknowledges that a Notice and formal complaint form were sent on September 27, 2017, but argues it was a mistakenly sent "second" Notice. It should be noted that the EEO complaint processing regulation at 29 C.F.R. Part 1614 does not expressly address or define service by electronic mail. 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 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). We do not find that the Agency has met that burden. There is no clear evidence supporting the Agency's assertion that the Notice was sent and received on September 11, 2017. A close review of the attachments (including the Notice and formal complaint form) purportedly included with the September 11, 2017 e-mail, reveals a statement in small print at the bottom of each page: "Confidential Doc - generated in the ORM Complaint Automated Tracking System CATS - 9/24/15" (emphasis added). Moreover, the Agency admits that it did send a Notice on September 27, 2017, and argues that the EEO Counselor was mistaken when stating in the September 24, 2017 email that the case was still in the ADR stage. Whether in error or not, we find that the Agency's actions contributed to resulting confusion and possible untimeliness. See also Martinez v. Department of Transportation EEOC Appeal No. 01A41881 (December 21, 2004). The instant record does not support the Agency's determination that the complaint was untimely filed. Failure to State a Claim The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). In its decision, the Agency dismissed the complaint for failure to state a claim, reasoning that the "rescinded proposed reprimand, the proposed suspension, and subsequent 3-day suspension were not physically threatening or humiliating. . . did not create a hostile or abusive work environment." A review of the formal complaint reflects that Complainant simply alleged he was discriminated against with respect to the June 27, 2017 three-day suspension.3 While this sole discrete act does not present a hostile work environment claim, Complainant has alleged a harm to a term, condition or privilege of his employment and a justiciable claim of discrimination. The Agency's dismissal of the claim was improper. CONCLUSION The Agency's final decision is REVERSED and the formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER (E0610) 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 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 March 13, 2018 __________________ 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 The Agency's decision also inexplicably stated that "Event 2" constituted a timely raised discrete claim which was "Accepted", before it proceeded to dismiss the entire formal complaint. 3 The Agency decision noted that Complainant served the suspension July 12 through July 14, 2017. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120180621 6 0120180621