Carol Molloy, Complainant,v.John Ashcroft, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionJun 4, 2003
01A21506_r (E.E.O.C. Jun. 4, 2003)

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complainant had withdrawn the request for a hearing on that claim.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final decision because you have withdrawn your request for a hearing.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.