01A25067_r
02-05-2003
Catherine M. Mejias, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Catherine M. Mejias v. Social Security Administration
01A25067
February 5, 2003
.
Catherine M. Mejias,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A25067
Agency No. 02-0417-SSA
DECISION
Complainant initiated contact with an EEO Counselor on March 6, 2002.
The record indicates that complainant received a notice of right to file
a formal complaint of discrimination on June 19, 2002. The notice stated
that if a complaint is filed, it must be filed within fifteen days after
receipt of the notice. The notice further stated that the complaint
must be mailed or delivered to certain agency addresses in Baltimore,
Maryland. In her formal EEO complaint, complainant claimed that she
was discriminated against on the bases of her sex (female) and national
origin (Puerto Rican) when she was subjected to harassment and a hostile
work environment. The incidents cited by complainant were as follows:
1. Although complainant was employed as an Information Receptionist,
GS-304-4, from the time she began working in the office in September
2001, she was expected to perform duties associated with the position
of Case Assistant, GS-986-8.
2. Complainant's supervisor discouraged complainant from applying for
Case Assistant vacancies.
3. Office managers made derogatory comments to each other about
complainant and her husband in complainant's presence.
4. In January 2002, complainant was charged with one day of absence
without leave.
5. On January 29, 2002, complainant was forced to resign from employment.
The agency dismissed the complaint on the grounds that complainant failed
to file the complaint in a timely manner. The agency determined that
although complainant received the notice of right to file a formal
complaint of discrimination on June 19, 2002, she did not file her
formal complaint until July 31, 2002, after the expiration of the 15-day
filing period.
On appeal, complainant contends that she mailed her formal EEO
complaint to her EEO Counselor in Richmond, California on June 30,
2002. Complainant submits a certified receipt indicating that the
EEO Counselor received the complaint on July 2, 2002. According to
complainant, the EEO Counselor returned the complaint to her two weeks
later with a note stating that the complaint should be sent to Baltimore.
Complainant notes that she was in the hospital from June 22-24, 2002,
giving birth to her child.
In response, the agency asserts that complainant did not file her formal
complaint until July 31, 2002. The agency submits a copy of the envelope
that enclosed the complaint and it is postmarked July 31, 2002.
Upon review of the record, we find that the agency has not refuted
complainant's position that she mailed her complaint to the EEO Counselor
within the 15-day filing period. We note that the notice of right
to file did not list the EEO Counselor's office as an option where
complainant could mail her complaint. However, a certified receipt
submitted by complainant does indicate that the complaint was received
at the EEO Office on July 2, 2002, within the 15-day filing period.
It appears that complainant promptly mailed the formal complaint to
the correct Baltimore office after the complaint was returned to her.
There is no evidence that complainant has previously made such a mistake.
Weighing all the circumstances, we find that the instant complaint
was filed in a timely manner. Accordingly, the agency's dismissal of
the complaint was improper and is REVERSED. This complaint is hereby
REMANDED for further processing pursuant to 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
February 5, 2003
__________________
Date