01A34758_r
03-12-2004
Zejneba Z. Simovic v. Department of Homeland Security
01A34758
March 12, 2004
.
Zejneba Z. Simovic,
Complainant,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A34758
Agency No. 7-03-3052
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dated July 16, 2003, dismissing her complaint of unlawful
employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. In her complaint, complainant alleged that she was subjected
to discrimination on the basis of disability when:
Complainant was not selected for the position of Transportation Security
Screener.
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2),
for untimely EEO Counselor contact. The agency found the discriminatory
event occurred on August 6, 2002, but complainant did not initiate
EEO counseling until January 22, 2003. Further, the agency found the
complaint was untimely filed because complainant received the notice of
right to file her complaint on February 10, 2003, but that complainant
did not file her complaint until March 4, 2003.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a written
complaint with an appropriate agency official within fifteen calendar
days after the date of receipt of the notice of the right to file a
formal complaint.
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides that the agency shall
dismiss a complaint that 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).
The Commission is unable to determine from the record whether
complainant's initial EEO Counselor contact was timely. We observe that
the agency's decision refers to an incident date of August 6, 2002,
and considers complainant's initial EEO contact as January 22, 2003.
However, the EEO Counselor's report indicates that an initial interview
with complainant was conducted on November 6, 2002, with a follow-up
interview on January 27, 2003. The same report cites January 22,
2003, as complainant's initial contact and January 31, 2003, as the
date of complainant's final interview. Significantly, the complaint
does not indicate the date of the alleged discriminatory event at all.
We find no objective record evidence that corroborates the agency's
determination that complainant was notified of her nonselection on August
6, 2002. We note that the EEO Counselor's Report states that complainant
alleged that she applied for the position at issue on November 6, 2002.
Accordingly, we shall remand the matter so that the agency can place
evidence in the record showing when complainant was informed that she was
not selected for the position at issue. The agency shall also clarify
when complainant initially contacted an EEO Counselor.
Additionally, we find nothing in the record to confirm that complainant
received the notice of right to file her complaint on February 10, 2003.
Therefore, we shall remand the matter so that the agency can place
evidence in the record showing when complainant received the notice of
right to file a complaint.
We therefore VACATE the agency's final decision. We REMAND the complaint
to the agency for further processing as directed herein.
ORDER
Within 30 days of the date this decision becomes final, the agency shall:
Supplement the record with evidence showing when complainant received
the notice of right to file a complaint.
Supplement the record with evidence clarifying when complainant first
contacted an EEO Counselor.
Supplement the record with evidence to show when complainant was notified
that she was not selected for the position of Transportation Security
Screener.
Issue a new decision either dismissing complainant's complaint or
accepting the complaint for investigation.
A copy of the agency's new decision or acceptance letter must be sent
to the Compliance Officer as referenced herein.
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 12, 2004
__________________
Date