01A63645
09-06-2006
Delleane Tolliver-McKenzie, Complainant, v. Stephen L. Johnson, Acting Administrator, Environmental Protection Agency, Agency.
Delleane Tolliver-McKenzie,
Complainant,
v.
Stephen L. Johnson,
Acting Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 01A63645
Agency No. 2005-0074-HQ
Hearing No. 570-2006-00101X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final order dated April 19, 2006, implementing the EEOC Administrative
Judge's (AJ) decision 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.
In her complaint, complainant alleged that she was subjected to
discrimination on the bases of race (African-American), sex (female), color
(Black), and age (D.O.B. 02/01/53) when, on December 8, 2004, she was not
selected for the position of Supervisory Program Analyst, GS-343-15 under
Vacancy Announcement Number OCFO-MP-0056.
The agency accepted the complaint for investigation. Following the
investigation, complainant requested that a hearing be held on the matter
before an AJ. The AJ reviewed the record and found that the matter should
be dismissed pursuant to 29 C.F.R. �1614.107(a)(2) for untimely EEO
Counselor contact. The AJ noted that complainant became aware of the non-
selection on December 8, 2004, but did not initiate contact with an EEO
Counselor until June 22, 2005, well beyond the forty-five day regulatory
time limitation. Therefore, the AJ dismissed the complaint, and the agency
fully implemented the dismissal.
Complainant appealed arguing that the dismissal was inappropriate. She
included her signed statement indicating that, on January 20, 2005, she had
actually first contacted the EEO Office regarding her non-selection.
Complainant averred that the EEO Office staff told her that counseling was
not necessary and that the case would be combined with her prior EEO
complaint which was before another EEOC Administrative Judge. However,
when that AJ denied complainant's motion to amend her complaint on June 14,
2005, she contacted the EEO Office on June 23, 2005. Therefore,
complainant argued that she contacted the EEO Office in a timely manner on
January 20, 2005. We note that the agency did not oppose complainant's
appeal.
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that a complaint or a
portion of a complaint shall be dismissed if it fails to comply with the
applicable time limits contained in �1614.105, �1614.106 and �1614.204(c),
unless the agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person
must initiate contact with an EEO Counselor within forty-five (45) calendar
days of the date of the matter alleged to be discriminatory or, in the case
of a personnel action, within forty-five (45) calendar days of the
effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2)
allows the agency or the Commission to extend the time limit if the
appellant can establish that appellant was not aware of the time limit,
that appellant did not know and reasonably should not have known that the
discriminatory matter or personnel action occurred, that despite due
diligence complainant was prevented by circumstances beyond her control
from contacting the EEO Counselor within the time limit, or for other
reasons considered sufficient by the agency or Commission.
Upon review, we find that the instant complaint was improperly dismissed
for untimely EEO contact. Complainant provided a sworn statement, which
the agency has not disputed, indicating that she contacted the EEO Office
regarding the non-selection on January 20, 2005. We note that this contact
was within forty-five calendar days from December 8, 2004, the date
complainant was informed of the non-selection. Therefore, we conclude
that the complaint was raised in a timely manner.
Accordingly, we vacate the agency's final order and remand the matter for
further processing in accordance with the order below.
ORDER
The complaint is remanded to the Hearings Unit of the EEOC's Charlotte
District Office for the scheduling of a hearing in an expeditions manner.
The agency is directed to submit a copy of the complaint file to the
Hearings Unit of the EEOC's Charlotte District Office within fifteen (15)
calendar days of the date this decision becomes final. The agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the EEOC AJ shall issue a decision on the complaint in
accordance with 29 C.F.R. � 1614.109, and the agency shall issue a final
action in accordance with 29 C.F.R. � 1614.110.
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
September 6, 2006
__________________
Date