01A02945
03-21-2002
Michiko Hata, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Michiko Hata v. Department of the Army
01A02945
March 21, 2002
.
Michiko Hata,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A02945
Agency No. DAY-99-FA0206E
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) 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. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission VACATES and REMANDS the agency's
final decision.
The record reveals that during the relevant time, complainant was employed
as a Equal Employment Opportunity Officer at the agency's U.S. Army
Headquarters, U.S. Army Garrison, Fort McPherson, Georgia facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on April 7, 1999, alleging that she was discriminated against
on the bases of national origin (Asian) and disability (breast cancer)
when her informal complaint dated January 17, 1997 was not processed.
In addition, complainant alleged that she was discriminated against on
the bases of national origin (Asian), disability (breast cancer), and
reprisal (prior EEO activity) when she was not permitted to attend the
1999 EEO, Staff Judge Advocate, and Human Resources Office Conference
in St. Louis, Missouri.<1>
At the conclusion of the investigation, the agency claims that it
informed complainant of her right to request a hearing before an EEOC
Administrative Judge or alternatively, to receive a final decision by
the agency. When complainant failed to respond, the agency issued its FAD.
Complainant argues on appeal that she never received her hearing rights,
and accordingly was denied a hearing on her complaint. Actual receipt of
a document is generally necessary to commence the running of a regulatory
time limit. See Woehr v. United States Postal Service, EEOC Request
No. 05960657 (July 3, 1997). A regulatory time limit may run where
due diligence is used to deliver appropriate rights to a complainant,
but the effort is unsuccessful. Id.; See also, Jackson v. United States
Postal Service, EEOC No. 01951419 (July 31, 1997).
The agency argues that it sent complainant her Investigative File along
with a cover letter outlining complainant's hearing rights on September
1, 1999. The agency asserts that the cover letter was mistakenly left
out of the package with the Investigative File so it sent complainant
another letter on October 14, 1999 informing complainant of her �appeal�
rights. The record does not contain the October 14, 1999 letter.
While, the September 1, 1999 cover letter is contained in the file,
there is no indication that the letter was ever sent to complainant.
In addition, there is no evidence that complainant actually received her
hearing rights. Accordingly, since the agency has offered no proof that
complainant actually received her hearing rights or that the agency used
due diligence in their efforts to provide complainant with hearing rights,
we find that complainant's request for a hearing is timely.
Accordingly, we VACATE the agency's decision on the merits of
complainant's complaint and REMAND the case to the agency to forward
to an EEO Administrative Judge for a hearing in accordance with 29
C.F.R. � 1614.109.
ORDER
The agency shall submit to the Hearings Unit of the Atlanta District
Office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit a
copy of the complaint file to the EEOC Hearings Unit 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 Administrative Judge 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
March 21, 2002
__________________
Date
1 Complainant also claims on appeal that the issues framed by the agency
fail to identify other issues raised in her formal complaint.