U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Julie Z.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120182137 Agency No. 18-68094-00642 DECISION On June 4, 2018, Complainant, through her attorney, filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated May 15, 2018, 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 was employed by the Agency as an Industrial Hygienist at the Naval Hospital Camp Pendleton, Industrial Hygiene Department in Camp Pendleton, California. On April 27, 2018, Complainant filed a formal complaint alleging that she was subjected to ongoing discrimination and harassment based on her sex (female) and/or reprisal for prior protected EEO activity under Title VII (opposition to harassment starting in March 2017) when: 1. On October 6, 2016, her first line supervisor (S1 - male) patted her face in her cubicle after saying "good work." 2. On February 15, 2017, after returning to his office sweaty and exhausted from a bike ride, S1 said in a jokey voice to her: "I'm too tired to take off my clothes, could you help me?" loud enough for two co-workers to hear. 3. On March 5, 2017, S1 talked about getting an apartment closer to work so he would only have to see his family on weekends. She reacted by asking, "Wouldn't your wife miss you?", and S1 jokingly replied "No, you would be over and I would call her and show her 'guess who's at my apartment?'". 4. In March 2017, S1 counseled her about timeliness. 5. On May 2, 2017, S1 sent out an email lauding all those who participated in a big project, singling out for special praise a coworker for leading it and Complainant for co-facilitating discussions, even though she led or co-lead the project. 6. On July 10, 2017, S1 wrote her up for minor infractions and petty offenses. 7. On September 26, 2017, S1 reviewed a report with her in his office. She initially had had difficulty locating a word. When she pointed to the word and then moved her hand away, S1 grabbed her finger and placed it on the word again, and looked up at her, made eye contact, and asked "Right there." 8. On October 26, 2017, after she asked for a feedback meeting on her performance, S1 met with her and was negative about her performance, raised her minor administrative infractions, and did not give her credit for her accomplishments. 9. On November 20, 2017, S1 counseled her for not attending a meeting. 10. On November 21, 2017, S1 docked her 1.5 hours of leave. 11. On December 4, 2017, S1 terminated her prior to the end of her probationary period.2 The Agency dismissed the complaint for failure to timely file the complaint. The record shows that by email on March 28, 2018, the Agency notified Complainant's designated legal representative of correspondence on her complaint from the EEO office. The notification provided a link and password to download Package ID 12984098, instructed that the password could only be used once, and gave a telephone number for technical assistance. On March 28, 2018, Complainant's law firm's administrative assistant opened the email and downloaded the package, which was the notice of right to file a formal complaint of discrimination. An Agency electronic receipt reflects that Package ID 12984098 was downloaded on March 28, 2018, by an identified email address of Complainant's law firm. On appeal, Complainant's attorney submits an affidavit confirming that a law firm administrative assistant accessed the email on March 28, 2018. The notice of the right to file the complaint is dated March 28, 2018, with the heading "SENT ELECTRONICALLY VIA SAFE ACCESS FILE EXCHANGE." It is addressed to Complainant's attorney by name to the law firm email address, and identifies Complainant. The notice instructs that if Complainant files an EEO complaint, it must be in person or by mail and postmarked within 15-calendar days upon receipt of the notice, and gives an address for doing so. Complainant, through her attorney, filed her complaint by letter postmarked April 13, 2018. Therein, the following is written: NOTE: PLEASE NOTE THAT THE "NOTICE OF RIGHT TO FILE A FORMAL DISCRIMINATION COMPLAINT" IN THIS CASE WAS RECEIVED BY THE COMPLAINANT'S ATTORNEYS ON MARCH 29, 2018, AND THE COMPLAINANT NEVER RECEIVED A COPY OF THE DOCUMENT FROM THE AGENCY. THIS FORMAL COMPLAINT IS ENTIRELY TIMELY. The Agency dismissed the complaint for failure to timely file the complaint. It reasoned that Complainant's attorney received the notice of right to file the complaint on March 28, 2018, and the complaint was filed on Friday, April 13, 2018, beyond the 15-calendar day time limit. The instant appeal followed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(2) requires, in pertinent part, that an agency dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106. This regulation requires the filing of a formal complaint within 15-days of receiving the notice of the right to do so. When the complainant designates an attorney as representative, the time frames for receipt of materials is computed from the time of receipt by the attorney. 29 C.F.R. § 1614.605(d). Complainant designated her attorney as her representative on December 21, 2017, prior to the completion of EEO counseling and the issuance of the notice of right to file at issue. Complainant's attorney does not contend that he requested the Agency not to engage in certain types of communication via email. Complainant's attorney states that attorneys in his law firm do not have individual email accounts, the entire law firm shares one email account, and email in Complainant's case was used to facilitate initial contact with the EEO counselor and for the limited purpose of eliciting a settlement offer from the Agency's legal counsel. He acknowledges that following the policy of the law firm, an administrative assistant accessed the email notice on March 28, 2018, but with no way of knowing it was urgent, he did not access it himself until March 30, 2018. The attorney explains that upon receipt of the Notice on March 30, 2018, he calendared the deadline to file the formal complaint as Monday, April 16, 2018. The record reflects that the administrative assistant did more than open the email notifying the law firm that there was correspondence by the EEO office on Complainant's complaint. The Agency's receipt shows that on March 28, 2018, the law firm went to the file exchange and downloaded the packet - Complainant's notice of right to file a complaint. To do this required use of the one-time password in the March 28, 2018, notification email. As such, we find that the law firm received the notice of right to file the complaint on March 28, 2018. The 15-day time limit began to run upon the law firm's receipt of the notice of right to file a complaint, not when Complainant's attorney in the firm actually looked at it. Accordingly, the filing of the complaint on Friday, April 13, 2018, was untimely. The Agency does not contest that Complainant herself was not provided the notice of right to file a complaint. Regardless, the time limit to file the complaint began to run when Complainant's attorney law firm received the notice. The FAD is AFFIRMED. 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 (S0610) 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. 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 September 7, 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 defined the complaint in the FAD. We have redefined the complaint here to better capture her claims. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120182137 5 0120182137