Beth Norden, Complainant,v.Lawrence M. Small, Secretary, Smithsonian Institution, Agency.

Equal Employment Opportunity CommissionDec 3, 2005
01a52216 (E.E.O.C. Dec. 3, 2005)

01a52216

12-03-2005

Beth Norden, Complainant, v. Lawrence M. Small, Secretary, Smithsonian Institution, Agency.


Beth Norden v. Smithsonian Institution

01A52216

May 3, 2005

.

Beth Norden,

Complainant,

v.

Lawrence M. Small,

Secretary,

Smithsonian Institution,

Agency.

Appeal No. 01A52216

Agency No. 05-04-120304

DECISION

Complainant filed an appeal with this Commission from a final agency

decision, dated December 21, 2004, pertaining to 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. The Commission accepts

the appeal in accordance with 29 C.F.R. � 1614.405.

Complainant contacted the EEO office regarding claims of discrimination

based on sex, age and disability. Informal efforts to resolve her

concerns were unsuccessful. On December 3, 2004, complainant filed the

instant formal complaint.

In its December 21, 2004 final decision, the agency dismissed

complainant's complaint on the grounds that it was untimely filed. The

agency found that a �Notice of Right to File Complaint�, which set forth

the fifteen-day time limit, was delivered to complainant's representative

on January 16 and May 21, 2004. Further, the agency noted that a �Notice

of Final Interview� was sent to complainant's representative on June 17,

2004, but that it was returned to the agency bearing a �refused� stamp.

According to the agency, the complaint should have been filed by July

11, 2004. Consequently, the agency found complainant's December 3,

2004 filing to be untimely.

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 fifteen

(15) days of receiving notice of the right to do so.

The record in this case contains Domestic Return Receipts showing

that complainant's representative received �Notice of Right to File

Complaint� letters, on January 16, 2004 and May 28, 2004. The letters

informed complainant that thirty days had elapsed since contacting the

EEO Counselor and therefore she was entitled to file a formal complaint.

However, the �Notice of Right to File Complaint� also explained that

�[i]f you do not file a complaint at this time, counseling will continue

and your rights to file a complaint also will continue until fifteen

calendar days after the final interview.� (Emphasis added).

In its final decision, the agency acknowledges that complainant's

representative did not receive the �Notice of Final Interview� sent in

June 2004. The record indicates that the document was mailed to the

representative's address of record, and returned to the agency with a

�refused� stamp. There is no indication that the agency attempted to

re-send the �Notice of Final Interview,� or otherwise provide it to

complainant or complainant's representative.

Therefore, based on the clear language in the �Notice of Right to File

Complaint,� explaining that the time limit would begin to run after the

final interview, and complainant's non-receipt of the �Notice of Final

Interview,� we find that agency erred in concluding that the formal

complaint should have been filed by July 11, 2004.

Accordingly, the agency's decision to dismiss complainant's complaint

as untimely was improper, and is hereby REVERSED. The complaint is

REMANDED to the agency for further processing in accordance with this

decision and the ORDER below.

ORDER (E0900)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claims within thirty (30) calendar

days of the date this decision becomes final. 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 becomes final, 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.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

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 19848,

Washington, D.C. 20036. 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 (M0701)

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), 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 19848,

Washington, D.C. 20036. 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 (R0900)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

December 3, 2005

__________________

Date