EEOC Appeal 2020000404

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Nicolle D., 1
Complainant,
v.
Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 2020000404
Agency No. IRS-19-0702-F
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated September 27, 2019, 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 worked as a Revenue Agent, 0512,
GS-12, at the Agency’s Small Business/Self-Employed Examination Operations facility in
Milwaukee, Wisconsin.
On May 20, 2019, Complainant filed a formal complaint alleging that the Agency subjected her to
discriminatory harassment on the bases of race/national origin (Mexican), and reprisal for prior
EEO activity, beginning on February 26, 2019 and continuing until April 22, 2019, citing
numerous alleged instances.
The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.106(b) and 107(a)(2), as
untimely filed, noting that although Complainant emailed her formal complaint to the appropriate
mailbox on May 20, 2019, it was not delivered.
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.

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On May 20, 2019, the Agency sent Complainant an email with the subject line, “Warning-Email
Contained Sensitive Data,” advising her that her email submission had been blocked because it
contained potential unencrypted sensitive data, in violation of Agency policy, and that she should
remove any such information before attempting to re-send the message. Complainant subsequently
resent her formal complaint on August 5, 2019, which the Agency found untimely.
The instant appeal followed. On appeal, Complainant asserts that, she believed the May 20, 2019
email was an acknowledgment that her formal complaint had been received. She notes the subject
line did not indicate a delivery failure but was a warning that the email contained sensitive data.
She further asserts that she first learned that her email had not been received in a July 24, 2019
letter from the Agency relating to another complaint and she resubmitted her formal complaint on
August 5, 2019. She argues that she emailed her formal complaint within the 15-day time limit
and her formal complaint was timely.
In response, the Agency asserts that the May 8, 2019 Notice of Right to File a Discrimination
Complaint informed Complainant that if she wanted to file a formal complaint, she must do so
within 15 calendar days and the Agency did not receive a formal complaint until Complainant’s
August 5, 2019 submission. The Agency argues that equitable estoppel or tolling should not apply
and that the Commission should affirm its final decision.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. §1614.106(b) requires the filing of a written complaint with an
appropriate agency official within fifteen (15) calendar days after the date of receipt of the notice
of the right to file a complaint required by 29 C.F.R. §1614.105(d), (e) or (f).
EEOC Regulation 29 C.F.R. §1614.107(b) provides that the agency shall dismiss a complaint that
fails to comply with the applicable time limits contained in §§1614.105, 1614.106, and
1614.204(c), unless the agency extends the time limits in accordance with 29 C.F.R. §1614.604(c).
EEOC Regulation 29 C.F.R. §1614.604(c) provides that the time limits are subject to waiver,
estoppel and equitable tolling.
Here, as discussed above, Complainant emailed the formal complaint within the 15-day time limit.
We note that the subsequent email warning Complainant that her email contained sensitive data
did not clearly indicate that her email had not been delivered. Under these circumstances, we
exercise our discretion to equitably toll the 15-day time limitation. 29 C.F.R. §1614.604(c)
Accordingly, we REVERSE the Agency’s final decision dismissing Complainant’s complaint and
we REMAND this matter to the Agency for further processing in accordance with the Order below.

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ORDER (E0618)
The Agency is ordered to process the remanded complaint, in accordance with 29 C.F.R. §
1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the
remanded complaint within thirty (30) calendar days of the date this decision was issued. The
Agency shall issue to Complainant a copy of the investigative file and also shall notify
Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date
this decision was issued, unless the matter is otherwise resolved prior to that time. 	If the
Complainant requests a final decision without a hearing, the Agency shall issue a final decision
within sixty (60) days of receipt of Complainant’s request.
As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency
must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to
Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of
rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s
request for a FAD, or a statement from the agency that it did not receive a response from
complainant by the end of the election period.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. 	Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.

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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 (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.

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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 (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
August 27, 2020
Date