0120112636
05-09-2012
Darlene I. Butler, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Darlene I. Butler,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120112636
Agency No. 100002303331
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 23, 2011, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program and Management Analyst at the Agency's Naval Supply Systems Command facility in Mechanicsburg, Pennsylvania.
On December 21, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and age (55) when on or about August 24, 2010, her immediate supervisor did not give her a performance award.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), for failure to file a timely formal complaint. The Agency determined that Complainant informed the EEO Counselor during a November 24, 2010 telephone conversation that she would be out of the office until November 30, 2010. According to the EEO Counselor, she advised Complainant to read her email immediately upon her return to work. On November 24, 2010, the EEO Counselor claimed to have emailed Complainant the Notice of Final Interview/Notice of Right to File a Formal Complaint. The Agency determined that Complainant returned to work on November 30, 3010, but did not file her formal complaint until December 21, 2010, which was beyond the 15-day limitation. As a result, the Agency dismissed the complaint for failure to file a timely formal complaint.
The instant appeal was filed. On appeal, Complainant gives a time line of the events. She agrees with the Agency's contention that the notice of right to file was emailed to her on November 24, 2010, but states she did not open the email until Friday, December 10, 2010. Complainant also contends that she never received a final interview from the EEO Counselor and the EEO Counselor never advised her to check her email after she returned to work. Accordingly, Complainant requests that the Commission reverse the Agency's dismissal.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint that fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106(b) which, in turn, requires the filing of a formal complaint within 15 days of receiving the notice of right to do so.
The Commission is not persuaded by the Agency's determination that the instant formal complaint was not timely filed. Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy, v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Def., EEOC Request No. 05920506 (Aug. 25, 1992)).
Complainant disputes many of the details of the November 23, 2010 telephone conversation with the EEO Counselor. Specifically, Complainant contends that she neither received a final interview nor did the EEO Counselor advise her to read her email upon her return to work. The EEO Counselor asserts that she sent Complainant the Notice of Final Interview/Notice of Right to file a Formal Complaint by electronic mail on November 24, 2010.
While the EEO complaint processing regulations at 29 C.F.R. Part 1614 do not expressly address or define service by electronic mail, it is the Agency's burden, regardless of the method of service, to present evidence to establish the date of Complainant's receipt of the notice of right to file. In this case, the Agency presented no evidence showing if or when Complainant received the notice, for example, by including the property page of the transmitted email. As such, under the circumstances present, the Commission finds that the Agency has not met its burden of establishing that the formal complaint was timely filed. See Burns v. Dep't of Justice, EEOC Appeal No. 0120112104 (July 28, 2011); Fletcher v. Dep't of Commerce, EEOC Appeal No. 0120100071 (March 30, 2011); Bolt v. Dep't of Health and Human Servis., EEOC Appeal No. 0120102899 (Sept. 29, 2010).
Accordingly, the Agency's decision dismissing Complainant's complaint is REVERSED and the complaint is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (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. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
May 9, 2012
__________________
Date
2
0120112636
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112636