0120093061
12-04-2009
Bunnatine H. Greenhouse, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Bunnatine H. Greenhouse,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120093061
Agency No. ARCEHECSA09MAR01355
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 16, 2009, 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), age (DOB: July 22, 1044), and reprisal for
prior protected EEO activity when:
1. On January 21, 2009, complainant received a level "3" National Security
Personnel System appraisal for the period October 1, 2007-September 30,
2008, which she believed was not indicative of her accomplishments nor
aligned with her objectives; and
2. On September 23, 2008, complainant received a 25 years of service
Certificate and Pin three months after other employees received
recognition in an award ceremony which was held on June 25, 2008.
The agency noted that complainant contacted the EEO counselor on March
8, 2009. The agency determined that both events occurred outside of the
45-day time period. As such, the agency dismissed both claims pursuant
to 29 C.F.R. �1614.107(a)(2).
CONTENTIONS ON APPEAL
Complainant appealed the dismissal of claim (1), however, not claim
(2). Complainant indicated that she received an e-mail stating that
her performance appraisal was available on the agency's electronic
personnel system. However, the system was not accessible until January
21, 2009. On that day, complainant received her appraisal. She noted
that the 45th day after the alleged discrimination was Saturday, March
7, 2009. As such, the next business day fell on March 9, 2008. As such,
complainant argued, her contact on March 8, 2009 was timely.
For the first time on appeal, the agency stated that complainant was
given her appraisal on December 16, 2008 in a face-to-face meeting with
her supervisor. As such, the agency argued that her contact on March 8,
2009 was still untimely.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the agency shall
dismiss a complaint or a portion of 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).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory or, in the case of
a personnel action, within 45 days of the effective date of the action.
It is noted that 29 C.F.R. �1614.604(d) provides that the last day of
the period shall be included unless it falls on a Saturday, Sunday, or
Federal holiday in which chase the period shall be extended to include
the next business day.
Upon review of the record, it is clear that supervisor showed complainant
a copy of the appraisal on December 16, 2008 in a face-to-face meeting.
However, a review of the appraisal shows that it was not signed by
complainant's supervisor until January 12, 2009 and placed on the
agency's electronic personnel system. On that day, complainant's
supervisor emailed complainant and her coworkers to inform them that their
evaluations and ratings have been completed and were now available on the
agency's electronic personnel system. Based on the agency's computer
system issues, complainant was not able to access the appraisal until
January 21, 2009. As such, we find that complainant did not receive the
appraisal until January 21, 2009. The 45 day time period was extended
to Monday, March 9, 2009 because the 45 day period fell on a Saturday.
As such, we find that complainant's contact on March 8, 2009, was timely.
Therefore, we find the agency's dismissal of the complaint pursuant to
29 C.F.R. �1614.107(a)(2) was not appropriate.
CONCLUSION
Accordingly, we REVERSE the agency's dismissal of claim (1), and REMAND
claim (1) for further processing in accordance with the ORDER below.
ORDER (E0408)
The agency is ordered to process the remanded claim (1) in accordance with
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 (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
December 4, 2009
__________________
Date
2
0120093061
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120093061