Natacha M.,1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Oct 22, 2020

2020003285 (E.E.O.C. Oct. 22, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Natacha M.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 2020003285 Agency No. AARILEY20FEB00503 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated May 8, 2020 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), due to the untimely filing of the formal complaint. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Police Officer, GS-0083-09, at the Agency’s Police/Provost Marshal Division, Directorate of Emergency Services (DES) at Fort Riley in Kansas. On February 12, 2020, Complainant initiated EEO Counselor contact. Informal efforts to resolve Complainant’s concerns were unsuccessful. On April 2, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), disability, and age when: 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. 2020003285 2 a. On February 12, 2020, the Lieutenant Colonel, 89th Military Police Battalion Commander issued Complainant a letter placing her on administrative leave pending a formal investigation; b. On February 10, 2020, the Deputy Chief of Police (DCP), Complainant’s supervisor, asked Complainant to provide a doctor's note for a dental appointment she had; c. On January 15, 2020, the Chief of Police (CP) at DES and DCP advised Complainant that she was required to complete her physical agility test by February 17, 2020; d. On or about December 4, 2019, CP informed Complainant that he had nowhere to put her or could not give her anything to do; e. On or about December 4, 2019, a co-worker (CW1), made comments about Complainant riding along with him but in the backseat of the patrol car like a prisoner; f. On December 3, 2019, there was a lock on Complainant’s locker to where she could not get into it; g. On December 3, 2019, another co-worker (CW2), put a picture on a desk and DCP said the desk was for day shift; h. On October 2, 2019, Complainant was at her annual physical when an employee there called CP to come and get Complainant due to the employee feeling Complainant was under the influence of drugs; i. On or about September 2019, CP did not allow Complainant to bid for a shift but allowed CW2 to move to day shift, the shift Complainant wanted while she was moved to night shift effective January 15, 2020; and j. On or about September 2019, Complainant’s co-workers quit talking to her. The Agency issued a final decision dismissing the complaint pursuant to 29 C.F.R. §1614.107(a)(2), finding that the complaint was untimely filed. The Agency stated that it initially mailed Complainant the Notice of Right to File a Formal Complaint of Discrimination and the Counselor’s Report on March 2, 2020, which was received by Complainant on March 11, 2020. The Agency subsequently sent Complainant a second copy of the Notice and Counselor’s Report that was received by Complainant on March 13, 2020. The Agency found that Complainant did not file the formal complaint until April 2, 2020, which was beyond the 15-day filing period. Additionally, the Agency noted the EEO officer met with Complainant on March 13, 2020, and reminded Complainant of the 15-day requirement, which Complainant acknowledged. As a result, the Agency dismissed the complaint as untimely filed. The instant appeal followed. 2020003285 3 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, which, in turn, requires the filing of a formal complaint within 15 days of receiving notice of the right to do so. The record discloses that Complainant received the Notice of Right to File a Formal Complaint on at the latest March 13, 2020. Although the notice indicated that Complainant had to file a formal complaint within 15 calendar days of its receipt, Complainant did not file her formal complaint until April 2, 2020, which is beyond the limitation period. On appeal, Complainant argues that as a result of COVID-19 and difficulty with limited communications due to quarantine, she believed her complaint was on “pause.” The record shows Complainant was in communication with EEO Office personnel throughout the entire period either in person, email, and/or telephonically. Further, Complainant has presented no evidence or arguments indicating that she was incapacitated or otherwise unable to timely file her complaint. While the Commission acknowledges and is sympathetic to the unique circumstances created by the COVID-19 pandemic, Complainant has not offered adequate justification in this particular instance to warrant an extension of the time limit for filing the complaint. Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. 2020003285 4 Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020003285 5 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 October 22, 2020 Date