U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elliott L.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury, Agency. Appeal No. 0120182071 Agency No. SGITAR180290F DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated May 9, 2018, dismissing his 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 Senior Investigative Research Specialist, GS-14, at an Agency office in Washington, District of Columbia (DC). On December 19, 2017, Complainant initiated EEO contact, and on April 18, 2018, filed a formal complaint, alleging the Agency subjected him to hostile work environment harassment on the basis of race (African-American) and/or in reprisal for engaging in prior protected activity when, between August 2017 and November 2017, Complainant was on detail assignment in San Francisco, California. Complainant alleged the following incidents in support of his claim: 1. Agency Investigative Counsel (S1) manipulated Complainant into performing Administrative Assistant duties although he is a GS-14 Specialist. 2. S1 made oppressive comments about Complainant, such as "I own [Complainant]" and "Complainant is my Administrative Assistant and works for me." 3. S1 arbitrarily changed Complainant's schedule without proper notice. 4. On October 18, 2017, S1 made inappropriate comments about a female coworker. 5. In October 2017, S1 threatened Complainant and, in November 2017, S1 stated that he watched Complainant in the workplace. 6. S1 continuously made derogatory comments about Complainant, such as calling Complainant a "fuck up" and saying he knew Complainant would mess up a task. 7. On November 9, 2017, S1 instructed Complainant to lie regarding his whereabouts when leaving the office that afternoon. 8. On October 26, 2017, S1 brought and consumed alcoholic beverages with armed federal agents on Agency property in Complainant's presence. In its final decision, the Agency dismissed Complainant's claim pursuant to 29 C.F.R. § 1614.107(a), for untimely formal complaint and failure to state a claim. The Agency asserted that Complainant received the Notice of Right to File on March 20, 2018, but did not file his complaint until April 18, 2018, beyond the required 15-day filing period. The Agency also noted that Complainant did not cite any prior EEO activity and it does not have record of any so Complainant cannot establish retaliation. Finally, the Agency found that incident (8) did not render Complainant aggrieved. The instant appeal from Complainant followed. On appeal, Complainant stated that he participated in a mediation session with the Agency on April 18, 2018 and received his Final Interview at that time. 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. EEOC Regulation 29 C.F.R. § 1614.106 requires filing of a formal complaint within fifteen (15) calendar days of receiving the notice of the right to do so. Where 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. Dep't of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request No. 05920506 (August 25, 1992)). Further, in Ericson v. Dep't of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission stated that "the agency has the burden of providing evidence and/or proof to support its final decisions." See also Gens v. Dep't of Defense, EEOC Request No. 05910837 (January 31, 1992). Here, the record shows that the Agency sent the Notice of Right to File by separate emails to Complainant and his attorney of record. The Agency has produced a "read receipt" purporting to show that Complainant opened the email at 9:08 a.m. on March 20, 2018. The Notice stated that Complainant had 15 days to file his formal complaint. However, the record contains no evidence of Complainant's attorney's receipt of the emailed Notice. 29 C.F.R. § 1614.605(d) provides that when a complainant has designated an attorney as representative all timeframes are computed from receipt of materials by that attorney rather than the complainant. While the Agency argues that it was reasonable to "assume" the attorney received and opened the email within five days of the Agency sending it, we find that this argument is insufficient under the circumstances presented here to meet the Agency's burden of proving untimely filing. We also note that at the time it issued the Notice, Complainant had not been given a Final Interview by the EEO counselor and was, in fact, being scheduled for a mediation session. Complainant stated that after the mediation session he received his Final Interview and a copy of the Notice on April 18, 2018, and then filed his formal complaint that same day. We find that the Agency's extension of the mediation session beyond the regulatory time period for EEO counseling may well have caused significant confusion about when the formal complaint filing period began. As such, we also exercise our discretion to excuse any brief delay in the filing of the complaint. See 29 C.F.R. § 1614.604(c). Finally, we note that whether Complainant has prior EEO activity is an element of a claim for reprisal and goes to the merits of the claim rather than procedural sufficiency. We find that Complainant's complaint states a viable claim of hostile work environment harassment. CONCLUSION Accordingly, we REVERSE the final agency decision and REMAND the matter consistent with this decision and the Order below. ORDER (E0618) 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. As provided in the statement entitled "Implementation of the Commission's Decision," the Agency must send to the Compliance Officer: 1) a copy of the Agency's letter of acknowledgment to Complainant, 2) a copy of the Agency's notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant's request for a hearing, a copy of complainant's request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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 September 19, 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 0120182071 5 0120182071