05970524
10-29-1998
Ramona Campbell, Appellant, v. John H. Dalton, Secretary, Department of the Navy, Agency.
Ramona Campbell v. Department of the Navy
05970524
October 29, 1998
Ramona Campbell, )
Appellant, ) Request No. 05970524
) Appeal No. 01963744
v. ) Agency No. 9600146007 )
John H. Dalton, )
Secretary, )
Department of the Navy, )
Agency. )
________________________________)
DENIAL OF RECONSIDERATION
On February 21, 1997, the Department of the Navy (hereinafter referred
to as the agency) timely initiated a request to the Equal Employment
Opportunity Commission (the Commission) to reconsider the decision
in Campbell v. Dep't of the Navy, EEOC Appeal No. 01963744 (January
17, 1997). EEOC regulations provide that the Commissioners may,
in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must
submit written argument or evidence which tends to establish one or
more of the following three criteria: new and material evidence is
available that was not readily available when the previous decision
was issued, 29 C.F.R. �1614.407(c)(1); the previous decision involved
an erroneous interpretation of law or regulation, or material fact,
or a misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3).
For the reasons set forth herein, the agency's request is denied.
ISSUE PRESENTED
The issue presented is whether the agency's request meets any of the
statutory criteria for reconsideration.
BACKGROUND
Appellant contacted an EEO counselor regarding her allegations of
unlawful discrimination. Appellant's formal complaint is dated August
18, 1995. Therein, appellant indicated August 18, 1995 as the date of
her final interview with the EEO counselor. To be timely under the
regulations, see 29 C.F.R. �1614.604(d), appellant would have had to
file her complaint by September 4, 1995 (Monday).
In its final decision (FAD), the agency dismissed appellant's EEO
complaint as untimely filed. The agency noted that the EEO complaint
was dated August 18, 1995 and that appellant provided a copy of the
complaint to the EEO counselor in February 1996.
In her appeal brief, appellant contended that she had timely filed her
complaint with the agency: once via regular first class mail and, when
she did not receive an acknowledgment, once via facsimile transmission
on September 2, 1995. Appellant said that she did not learn that the
agency never received her complaint until she went to an initial interview
regarding another complaint. Appellant then gave the EEO counselor a
copy of the complaint because she had already sent the original to the
agency via first class mail.
The record contained a copy of a facsimile cover sheet dated September 2,
1995 and addressed to the EEO counselor as well as a transmit confirmation
report for the same date. The record also contained a copy of the
attorney's internal "Record of Postage Use" showing postage charged to
appellant on August 18, 1995 for first class mail, which was described as
"ltr & formal compl."
The agency asserted that appellant's complaint never was filed until
February 1996, when appellant gave it to the EEO counselor. The agency
contended that in determining timeliness, it cannot rely on appellant's
representations or the attorney's internal records regarding the mailing
or facsimile transmission.
The previous decision found that although the record contained a notice
of right to file dated August 18, 1995, the record contained no evidence
establishing when appellant received the notice, e.g., a signature line
and date or a postal return receipt.
In its reconsideration request, the agency contends that the previous
decision erred in finding that the record contained no evidence
establishing when appellant received the notice of right to file.
The agency avers that the EEO counselor's report indicated that appellant
was provided with the notice on August 18, 1995. The agency also points
out that appellant never argued that she was unaware of the time period
for filing; rather, she argued that she filed her complaint within the
15 day limitations period.<1>
Appellant did not submit a response.
ANALYSIS AND FINDINGS
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument or
evidence which tends to establish that at least one of the criteria
of 29 C.F.R. �1614.407(c) is met. For a decision to be reconsidered,
the request must contain specific information that meets the criteria
referenced above.
The agency contends that the previous decision erred in finding that
the record contained no evidence to establish appellant's receipt of
the notice of right to file.
Although the EEO counselor's report may be sufficient to establish
appellant's receipt of the notice of right to file, we nonetheless
affirm the previous decision for the following reasons. As noted above,
appellant contended that she sent the agency her formal complaint
by regular mail and also by facsimile transmission within the 15-day
limitations period for filing her complaint. In support of her contention,
she provided the agency with copies of her attorney's internal records for
postage use and a facsimile cover sheet and transmit confirmation sheet.
The Commission finds that these documents are sufficient to establish
that appellant timely filed her complaint.
Because the agency's request fails to meet the criteria for
reconsideration, the Commission denies the request for that reason.
CONCLUSION
After a review of the agency's for reconsideration, the previous decision,
and the record as a whole, the Commission finds that the agency's
request fails to meet the criteria of 29 C.F.R. �1614.407(c), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01963744 (January 17, 1997) remains the Commission's
final decision. There is no further right of administrative appeal from
a decision of the Commission on a request for reconsideration.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS--RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Oct. 29, 1998
Date Frances M. Hart
Executive Officer
1The agency refers to a certified letter that appellant sent to the agency
and which allegedly was returned to appellant marked "refused" sometime
in September 1995. Information submitted by the agency indicates that
the correspondence concerned compensatory damages and not appellant's
August 18, 1995 complaint.