01A21506_r
06-04-2003
Carol Molloy, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Carol Molloy v. Department of Justice
01A21506
June 4, 2003
.
Carol Molloy,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A21506
Agency No. A-99-1016
Hearing No. 370-A2-X2001
DECISION
Complainant filed an appeal with this Commission concerning 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.,
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act) as amended, 29 U.S.C. 791 et seq.
In her complaint, complainant alleged that she was subjected to
discrimination on the bases of race (Caucasian), sex (female), disability,
and age, when: (1) she was not cross-designated as a Special Assistant
U.S. Attorney in 1994 and 1995; (2) duties were taken away from her by
her supervisor in or before 1997; and (3) her request for conversion to
an Assistant U.S. Attorney position was denied on July 14, 1998.<1>
On October 15, 2001, an Administrative Judge (AJ) issued an order
dismissing claims 1 and 2 pursuant to 29 C.F.R. � 1614.107(a)(2), for
untimely EEO Counselor contact. Additionally, the AJ instructed the
agency to issue a final decision on the record as to claim 3 because
complainant had withdrawn the request for a hearing on that claim.
Complainant has not challenged this statement.
On February 14, 2002, the agency issued a decision finding:
The [agency] agrees with the [AJ's] decision that two of the issues
in your complaint should be dismissed because they are untimely and
the remaining issue should be returned to the agency for issuance of a
final decision because you have withdrawn your request for a hearing.
The [agency] will not enter a separate final order on the matter so that
the [AJ's] decision will become the [agency's] final action by February
23, 2002.
The agency fully implemented the AJ's decision as to claims 1 and 2.
As to claim 3, the agency determined that the remaining issue should be
returned to them for issuance of a final decision because complainant
had withdrawn her request for a hearing. Thereafter, complainant filed
the instant appeal.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires complaints of
discrimination to be brought to the attention of the EEO Counselor within
forty-five (45) days of the date of the claimed discriminatory matter,
or, in the case of a personnel action, within forty-five (45) days of
the effective date of the action. The Commission's regulations, however,
provide that the time limit will be extended when the complainant shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not
have known that the discriminatory matter or personnel action occurred,
that despite due diligence he or she was prevented by circumstances
beyond his or her control from contacting the counselor within the time
limits, or for other reasons considered sufficient by the agency or the
Commission. See 29 C.F.R. � 1614.105(a)(2).
Regarding claims 1 and 2, the record discloses that the alleged
discriminatory events occurred in 1994, 1995 and 1997, but complainant
did not initiate contact with an EEO Counselor until July 15, 1998,
which is beyond the forty-five (45) day limitation period. On appeal,
complainant has presented no persuasive arguments or evidence warranting
an extension of the time limit for initiating EEO Counselor contact.
Regarding claim 3, the agency did not fully implement the AJ's decision.
The agency said that it would not enter a separate final order on the
matter so that the AJ's decision will become the agency's final action by
February 23, 2002. We find that the agency has failed to specifically
explain why a final decision was not issued as to claim 3. Therefore,
we shall remand the matter so that the agency may issue a decision on
the matter.
Accordingly, the agency's decision to dismiss claims 1 and 2 is AFFIRMED.
The agency's decision to dismiss claim 3 is REVERSED and claim 3 is
hereby REMANDED to the agency for further processing in accordance with
the Order herein.
ORDER
The agency is ordered to issue a final action pursuant to 29 C.F.R. �
1614.110 on the merits of the remanded claim based on the evidence already
present in the record. This decision must be issued within sixty (60)
calendar days of the date this decision becomes final. A copy of the
final action 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (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
June 4, 2003
__________________
Date
1On January 16, 2001, complainant acknowledged that she was not asserting
a claim for failure to accommodate her based on disability.