0120111001
05-13-2011
Cassandra Price-Gaines, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Cassandra Price-Gaines,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120111001
Agency No. BEP-10-0625-F
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated October 21, 2010, 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.
Upon review, the Commission finds that Complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), due to
the untimely filing of the formal complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Mutilated Currency Specialist, GS-0303-09, at the Agency’s work
facility in Washington, D.C. On October 2, 2010, Complainant filed a
formal complaint wherein she claimed that the Agency subjected her to
discrimination on the bases of race (African-American), sex (female),
and in reprisal for prior protected EEO activity when she was harassed
in the following manner:
1. In 2008, the Program Manager used a racial slur in a meeting with
Complainant and other coworkers.
2. Complainant was charged one hour Absent Without Leave (AWOL) for May
14, 2010.
3. On June 19 and 20, 2010, Complainant was prevented from starting in
the position to which she had been detailed.
4. In July 2010, Complainant was issued a negative mid-year performance
appraisal.
On September 10, 2010, Complainant received a Notice of Right to File
a Discrimination Complaint. Complainant filed her complaint on October
2, 2010. The Agency noted that Complainant explained that she had been
involved in settlement negotiations with Agency officials. According to
Complainant, the Chief of the Office of Financial Management agreed
to settle the complaint on September 13, 2010. The Agency noted that
Complainant stated she signed the settlement agreement on September 17,
2010, but that on September 24, 2010, the Chief decided not to sign the
agreement. According to Complainant, she was sick on September 24, 2010,
and it was not until September 27, 2010, that she learned there would
be no settlement of the complaint. The Agency determined that these
circumstances do not warrant an extension of the 15 day period for filing
a formal complaint. The Agency stated that there is no indication that
it agreed to the terms of the settlement agreement and then reneged on
the agreement. Further, the Agency determined that Complainant failed
to provide an explanation as to why she failed to file her complaint
in a timely fashion on September 27, 2010, the date she learned her
complaint was not going to be resolved.
On appeal, Complainant contends that the filing period should be extended
based on equitable estoppel. Complainant maintains that she was induced
by the Chief into not filing her formal complaint based on the Chief
accepting the indefinite detail clause that she proposed, waiting for
a week to give her notice that he was reneging on his acceptance, and
then leading her to believe he was willing to negotiate the settlement
agreement up to the day after the filing period expired.
In response, the Agency asserts that the Notice of Right to File a
Discrimination Complaint informed Complaint that the formal complaint
had to be filed within fifteen days of its receipt. The Agency states
that on September 17, 2010, a week after Complainant orally stated she
would not sign the agreement, she unilaterally signed the agreement with
the original terms and requested that the EEO Counselor send the Chief
the settlement for his signature. The Agency asserts that the Chief
indicated on September 24, 2010, that a limit on Complainant’s length
of time in detail assignments would need to be included for him to sign
the agreement. According to the Agency, the EEO Counselor forwarded this
information to Complainant on September 24, 2010, but Complainant was on
annual leave that day. The Agency states that Complainant returned to
work on September 26, 2010, and remained in a duty status the entire day.
According to the Agency, Complainant neither discussed with the EEO
Counselor extending the filing period nor whether she should file a
formal complaint to preserve her rights. The Agency maintains that the
Chief neither intentionally nor inadvertently prevented Complainant from
filing a formal complaint. Further, the Agency asserts that Complainant
was not incapacitated from filing her complaint on September 27, 2010.
The Agency argues that Complainant chose to ignore the filing deadline.
ANALYSIS AND FINDINGS
The record discloses that Complainant received the Notice of Right to File
a Formal Complaint on September 10, 2010. Although the notice indicated
that Complainant had to file a formal complaint within 15 calendar days
of its receipt, Complainant did not file her formal complaint until
October 2, 2010, which is beyond the limitation period set forth in 29
C.F.R. §1614.106(b). We find that the deadline should be equitably
tolled. Complainant believed that the settlement negotiations were
ongoing during the timeframe to file her complaint and was diligently
pursuing her complaint. After discovering that the Agency had not agreed
to the settlement agreement, as she believed they would, she filed her
complaint just several days after receiving notification that the Agency
had not agreed to the agreement. Therefore, we find that the complaint
was timely filed.
CONCLUSION
The Agency’s dismissal of the complaint is REVERSED and we REMAND
the complaint to the Agency for further processing consistent with this
decision and the Order herein.
ORDER (E0610)
The Agency is ordered to process the remanded claims 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 (K0610)
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 (M0610)
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 tends 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), at 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 (R0610)
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 (Z0610)
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
May 13, 2011
__________________
Date
2
0120111001
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013