Complainant,

v. 

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120122967
Hearing No.  510-2012-00157X
Agency No. 200I-0675-2011103439

DECISION

BACKGROUND

Complainant worked as a GS-11 General Engineer at the Captain James A. Lovell Federal Healthcare Center, North Chicago, IL.  He applied for three General Engineer positions, GS-0801-9/12, Announcement No. ORL-11-459619R-MB, but was not selected for any of them on May 17, 2011.  Complainant contacted an EEO counselor, who eventually issued a notice of right to file a discrimination complaint, dated July 1, 2011. Report of Investigation (ROI), at Tab A-2.  

Complainant filed a formal complaint on July 22, 2011, alleging discrimination on the bases of age and disability (physical) when: 

1. on May 17, 2011, the Agency did not select him for any of the three General Engineer positions, GS-0801-9/12, Announcement No. ORL-11-49619R-MB; and 

2. on May 17, 2011 and June 28, 2011, the Agency denied him information regarding the three selectees for the General Engineer positions, unless he paid $166 for the Freedom of Information Act Information.

On August 19, 2011, the Agency accepted claim 1 for investigation, but dismissed claim 2 for failing to state a claim.  After the Agency completed its investigation of claim 1, Complainant requested a hearing before an EEOC Administrative Judge.




EEOC Administrative Judge's Dismissal of Formal Complaint

On February 22, 2012, an EEOC AJ dismissed the complaint on the grounds that Complainant failed to file a formal complaint within 15 days of receiving the notice of right to file.  The AJ assumed that Complainant received the notice of right to file a formal complaint on Wednesday, July 6, 2011, five days after the Agency issued the notice on Friday, July 1, 2011. Therefore, the AJ determined that Complainant had to file his formal complaint by July 21, 2011.  But because Complainant filed his formal complaint on July 22, 2011, the AJ found Complainant's formal complaint to be untimely filed.

Agency's Motion to Reopen the Complaint

Normally, according to 29 C.F.R. § 1614.110(a), when an EEOC AJ issues a decision that dismisses a formal complaint, the Agency should issue a final order, within 40 days of receipt of the AJ's decision.  The final order shall notify the complainant whether the agency will fully implement the AJ's decision.  If the final order does not fully implement the AJ's decision, then the agency must simultaneously file an appeal.

While reviewing the complaint file, the Agency's Office of Resolution Management found that it possessed documentation showing that Complainant actually received the notice of right to file a discrimination complaint on July 12, 2011.  Therefore, Complainant had, in fact, timely filed his formal complaint 10 days later on July 22, 2011.

With this new discovery, the Agency should have issued a final order, declining to implement the AJ's decision, and filed an appeal.  But the Agency wanted to avoid the time-consuming and expensive process of filing an appeal, so it attempted to file a motion to reopen the complaint on April 5, 2012.

On May 10, 2012, the AJ denied the motion to reopen the complaint because, under 29 C.F.R. § 1614.109(i), the AJ's February 22, 2012 dismissal of the complaint had already become the final action of the agency since 40 days had elapsed without the Agency issuing a final order.

Agency's Advisement of Rights

On June 25, 2012, the Agency issued an "Advisement of Rights," indicating that it believed the complaint had been improperly dismissed through no fault of Complainant's, but the Agency could not appeal the AJ's decision to dismiss the complaint, because it had failed to issue a final order and appeal the decision within 40 days.  The Agency instead "advised" Complainant that he "may" have a right to appeal within 30 days of receiving the AJ's May 10, 2012 order denying the Agency's motion to reopen the complaint.

Complainant filed an appeal with the Commission on June 25, 2012, based on the Agency's "Advisement of Rights."  

ANALYSIS AND FINDINGS

Acceptance of Complainant's Appeal

Here, the AJ's February 22, 2012 decision to dismiss the formal complaint became final on April 9, 2012 (40 days after the Agency received the AJ's decision and failed to issue a final order).  This means that Complainant should have filed an appeal by May 9, 2012 (30 days from the date the AJ's decision became final).  However, he did not file an appeal until June 25, 2012.

Given the circumstances, we find it appropriate to equitably toll the time period for Complainant to file his appeal because of the manner in which the Agency mishandled the processing of the complaint: attempting to file a "motion to reopen" rather than issue a final order and appeal the AJ's decision; issuing an "Advisement of Rights" indicating that Complainant "may" have appeal rights based on the date that the AJ denied the Agency's motion to reopen.  See EEOC Compliance Manual, Section 2: Threshold Issues, EEOC No. 915.003.  We therefore accept Complainant's appeal.

AJ's Decision to Dismiss the Formal Complaint

In its March 5, 2012 "Memo to File" and its June 25, 2012 "Advisement of Rights," the Agency acknowledges that Complainant received the notice to file a formal complaint on July 12, 2011.  Given the Agency's concession that Complainant received the notice on July 12, 2011 and filed his formal complaint 10 days later on July 22, 2011, we find that the AJ erred in dismissing the formal complaint for untimely filing.

CONCLUSION

Accordingly, the Commission REVERSES the Agency's final action dismissing Complainant's complaint.1  The complaint (claim 1) is hereby REMANDED to the Agency for further processing in accordance with this decision and the Order below.

ORDER

The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit of the Miami District office within fifteen (15) calendar days of the date this decision becomes final.  The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)

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 submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013.  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 (M0610)

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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).  All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013.  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 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 (Z0610)

If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security.  See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).  The grant or denial of the request is within the sole discretion of the Court.  Filing a request for an attorney

with the Court does not extend your time in which to file a civil action.  Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").

FOR THE COMMISSION:


______________________________
Carlton M. Hadden, Director
Office of Federal Operations


__8/21/14________________
Date

1 We note that Complainant, on appeal, did not challenge the Agency's initial dismissal of claim 2 for failure to state a claim.  We therefore decline to analyze whether the Agency erred in dismissing claim 2.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013




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