01A23538_r
07-31-2003
Claretha Timmons, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Claretha Timmons v. Department of the Treasury
01A23538
July 31, 2003
.
Claretha Timmons,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A23538
Agency No. 02-2180
DECISION
The Commission finds the agency's May 9, 2002 decision dismissing
complainant's complaint improper. Complainant alleges discrimination
on the bases of age and sex when: (1) for a two year period her manager
referred to the female employees in the office as the weaker link and
denied her request that the manager address her as Mrs. Timmons; and
(2) on December 18, 2001, she was not selected for a Seized Property
Specialist, GS-1801-11, position under Vacancy Announcement Number
SOFLA/01-017 SGG. The agency dismissed complainant's complaint
pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely filing of the
formal complaint.
The record indicates that complainant filed her complaint on March
27, 2002. The agency dismissed finding that complainant received the
Notice of Right to File (NORF) her formal complaint on March 6, 2002,
which informed complainant that she must file her formal complaint within
15 days of receipt of the NORF.
Complainant argues that the agency, via facsimile, sent a NORF, which
was illegible. Complainant called the EEO Counselor and indicated that
she could not read the document. The EEO Counselor, via facsimile,
sent another NORF on March 6, 2002. Complainant states that she was
instructed to backdate her signature on the NORF to February 20, 2002,
and return, which she did. The agency uses the date of March 6, 2002
as the date of receipt of the NORF when rendering its decision.
Complainant further argues that she was informed that other documents were
necessary, aside from the NORF, to file the complaint. Complainant argues
that when she told the EEO Counselor that she desired to personally pick
the other documents up from the office, the EEO Counselor informed her
that the documents were already in the mail. Complainant argues that
she received the additional documents on March 15, 2002.
Given complainant's detailed account of the conversations between herself
and the EEO Counselor, we find complainant's argument persuasive that
she did not receive a legible copy of the NORF until March 15, 2002.
Further, the agency has failed to prove that complainant received a
legible copy of the NORF more than 15 days before complainant's filing of
the formal complaint. Therefore, we find the agency's dismissal improper.
The agency's decision dismissing complainant's complaint is REVERSED and
we REMAND the matter to the agency for further processing in accordance
with this decision and applicable regulations.
ORDER (E0900)
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 (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
July 31, 2003
__________________
Date