01991090
12-10-1999
Amelia Phillips, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Amelia Phillips, )
Complainant, )
)
v. ) Appeal No. 01991090
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
On November 18,1998, complainant filed a timely appeal with this
Commission from an agency action pertaining to her complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. and Section
501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et
seq. <1> In her complaint, complainant alleged that she was subjected to
discrimination on the bases of race (American Indian/White) and disability
(partial knee and back).
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint for untimely filing her formal complaint.
BACKGROUND
Complainant initiated EEO contact on May 20, 1997 alleging discrimination
on the basis of race (American Indian/White) and disability (partial knee
and back) when management failed to distribute office duties in a manner
which would allow the most efficient operation of the office; failed to
grant complainant awards, high performance ratings, and a promotion;
and tolerated the offensive remarks made by complainant's coworkers
to her. On June 18, 1997, the agency issued complainant a Notice of
Final Interview informing her of the right to file a formal complaint
within 15 calendar days of her receipt of the notice. The Agency's EEO
Office received complainant's formal complaint on July 10, 1997.
In accordance with 29 C.F.R. �1614.107(a)(2), on October 13, 1998,
the agency dismissed complainant's complaint for untimely filing her
formal complaint. As justification for her untimeliness, in a letter
dated October 22, 1998, complainant indicated she never received the
Notice of Final Interview and was ill. This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and
hereinafter referred to as 29 C.F.R. �1614.106) requires the filing of
a written complaint with an appropriate agency official within fifteen
(15) calendar days after the receipt of the notice of the right to file
a complaint required by 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified
and hereinafter referred to as 29 C.F.R. �1614.105(d),(e) or (f)).
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, .106, and .204(c), unless the agency extends
the time limits in accordance with �1614.604(c).
According to the record, the agency issued complainant a Notice of
Final Interview on June 18, 1997. The notice informed complainant
of her right to file a formal complaint within 15 calendar days of her
receipt of the notice. Complainant filed her complaint on July 10, 1997.
She stated that she untimely filed her formal complaint because she did
not receive the Notice of Final Interview originally sent by the agency
and possibly was ill.<2> The record contains a notice that has the
dated signature of the EEO Counselor and the signature of complainant.
However, her signature is undated.
The agency failed to prove when complainant received the Notice of Final
Interview. Thus, it also failed to prove that her complaint was filed
more than 15 days from her receipt of the notice. See Adams v. USPS,
EEOC Request No. 05940713 (Mar. 30, 1995). Accordingly, the agency's
dismissal is reversed.
CONCLUSION
It is the decision of the Commission to REVERSE the agency's dismissal
of complainant's complaint for untimely filing.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.108). 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 (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (R1199)
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").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:
December 10, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
1On November 9, 1999, revised regulations
governing the EEOC's federal sector
complaint process went into effect.
These regulations apply to all federal
sector EEO complaints pending at any
stage in the administrative process.
Consequently, the Commission will
apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present
appeal. The regulations, as amended,
may also be found at the Commission's
website at WWW.EEOC.GOV.
2Specifically, in her September 25, 1998 letter, complainant indicated
that if the Notice of Final Interview was sent via interoffice mail after
June 3, 1998, she would not have received it because she had been away
from work on disability since that date.
The record does not indicate how the Notice of Final Interview was
sent, however, it is in the form of a memorandum as opposed to a letter.
Complainant does not explain what prompted her to finally file her formal
complaint on July 10.