OFO Case Law Snapshot: Three Procedural Dismissals Addressed in One Day

By Deryn Sumner

As 2016 continues to truck along, let’s check in on the latest (or the most recent Westlaw has released) from the EEOC’s Office of Federal Operations.  On one day in particular, January 8, 2016, the EEOC addressed three dismissals of formal complaints and remanded two out of the three of them for processing.  Given the length of time cases can take to be remanded for further processing, improper dismissals can be dangerous for agencies.  Investigations taking place after a several-year delay can reveal that documents were destroyed and recollections are gone, which can impact an agency’s ability to sufficiently articulate legitimate, non-discriminatory responses to allegations.  So protect your agency by getting it right the first time.   

First, in Clemente M. v. Department of Homeland Security, Appeal No. 0120152854 (January 8, 2016), the agency dismissed a formal complaint for being filed one day beyond the fifteen-day time limit pursuant to 29 C.F.R. 1614.107(a)(2).  The complainant appealed and admitted that he did file his complaint one day late, but requested that the delay be excused.  The complainant proffered that “due to a transmission error, he had lost the initial draft complaint form that had been sent to him and that he was unable to receive and sign a new complaint form and transmit it by email to the Agency until the day after the formal complaint was due.” The Commission found there was adequate justification and no prejudice to the agency because of this slight delay, and remanded the complaint for investigation.

Next, in Ashlee P. v. Department of Defense, Appeal No. 0120152362 (January 8, 2016), the Commission addressed the agency’s dismissal of a complaint filed by a guidance counselor for an overseas elementary school.  The complainant filed a formal complaint alleging discrimination based on race, sex, and reprisal when she received a letter of caution and was subjected to harassment, including five articulated incidents.  The agency dismissed the formal complaint alleging that the complainant did not respond to additional requests for information and further alleged that the complainant “failed to make ‘good faith’ effort to cooperate in the pre-complaint counseling process by intentionally withholding requested information in order to reach appellate review before the Commission more quickly.”  Sound like an accusation from someone unaware of the glacial pace that the Office of Federal Operations operates at.  Despite the agency’s efforts, the Commission found that although the agency asserted that the complainant did not present her claims to the EEO counselor, the EEO counselor’s report reflected that she provided sufficient information to identify the events and actions on which her claims were based, as well as the identity of the responsible management officials, and the timeframes at issue.  This was sufficient for the agency to accept the claims for investigation and conduct an investigation.  The Commission remanded the complaint for such an investigation.      

And finally in Myrna S. v. Social Security Administration, Appeal No. 0120142595 (January 8, 2016), the Commission addressed the complainant’s argument that the agency’s dismissal of her formal complaint for untimely EEO contact should be reversed because she had been hospitalized during the 45-day timeframe.  The Commission disagreed, and took a careful look at the timeframe at issue.  The complainant filed a formal complaint on May 13, 2014 alleging her first-line supervisor subjected her to harassment when they engaged in an affair from August to December 2011.  The agency dismissed the formal complaint as the complainant did not contact an EEO counselor until years later on March 16, 2014.  The complainant argued on appeal that she did not contact an EEO counselor within the 45-day timeframe because she suffered from anxiety, depression, and was hospitalized.  She also claimed she forgot about the EEO training she received in 2010, which would have included information about the 45-day timeframe.  The agency opposed the appeal by arguing that EEO posters including this timeframe were prominently displayed in the complainant’s office. The Commission reviewed the time period in question and noted that the documentation the complainant submitted about her hospitalizations revealed she was in the hospital for approximately 18 days, between January 2012 and March 2014.  The Commission found that the complainant did not demonstrate she was so incapacitated during the relevant, several-year timeframe so as to excuse her untimely EEO contact.  The Commission affirmed the final decision dismissing the formal complaint.   Sumner@FELTG.com