By Meghan Droste, January 15, 2020
Happy New Year to our wonderful FELTG community! With the holidays, and their many related treats behind us, it’s time to get back to work. I decided to follow the example of my swim class coach and ease all of you back into things this month with a return to some fundamentals (unlike in my class, I promise not to make you break a sweat with these).
We talk a lot about deadlines when it comes to the EEO process. I have covered many different ones in this column. It may seem repetitive in a way, but really, they are so important to ensuring the integrity of the EEO process that it’s worth returning to them with some frequency. One key part of handling deadlines correctly is knowing what it takes to trigger them. After all, if the agency doesn’t send something to a complainant or their representative, the clock never starts running. Two relatively recent Commission decisions highlight the ways a small error can end up in a reversal of an agency’s decision.
In Orson R. v. Department of Veterans Affairs, EEOC App. No. 2019005308 (Oct. 2, 2019), the complainant initially made EEO contact without a representative. During the process of scheduling mediation, the complainant verbally notified the agency that he had retained counsel, and his attorney emailed the EEO program manager. The complainant’s attorney attended the mediation, which ultimately did not result in a resolution. When the agency subsequently mailed the notice of right to file (NRTF), it sent it only to the complainant. Three months later, the complainant’s attorney reached out to the agency for an update and learned about the NRTF. The complainant’s attorney then filed a formal complaint, which the agency immediately dismissed as untimely. In response to the complainant’s appeal, the agency argued that the complainant had failed to properly notify the agency that he was represented, because he did not send a written notification that included the attorney’s contact information. The Commission reversed the decision finding that the agency had notice that the complainant was represented and the clock starts from when the attorney, and not the complainant, receives the NRTF.
In Scarlet M. v. Department of Veterans Affairs, EEOC App. No. 2019005240 (Oct. 31, 2019), the agency sent the NRTF to both the complainant and the complainant’s representative via email on May 13, 2019. The complainant’s representative filed the formal complaint on May 29, 2019. In response to the agency’s request for an explanation for the apparently untimely complaint, the complainant’s representative acknowledged that although she opened the email on the day the agency sent it, the complainant was unable to open the email until May 15, 2019. The agency dismissed the complaint as untimely. Based on the Orson R. decision, you probably expect the agency to prevail in this case — the complainant’s representative received the email on May 13, but did not file the complaint until 16 days later. There is one key difference here: The complainant’s representative in Scarlet M. was not an attorney. As a result, the clock started running when the complainant and not the representative received the NRTF. In this case, the agency did not receive a read receipt from the complainant so it could not prove that she opened the email before May 15. The Commission reversed the dismissal.
While I doubt that any of you are spending time waiting at a mailbox for formal complaints, particularly as so much happens electronically these days, I do encourage you to spend an extra minute or two triple checking your files before sending out notices and before dismissing complaints so that you can avoid a reversal by the Commission. Droste@FELTG.com