0120063018
05-29-2008
Dolores L. Arellano,1 Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Dolores L. Arellano,1
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01200630182
Hearing No. 340-2005-00507X
Agency No. 6-00-6098
DECISION
The record indicates that complainant, a former agency employee as
a Secretary at the agency's Airways Facilities Division, filed the
instant complaint on July 25, 2000. The agency defined the complaint
as alleging discrimination based on race (Black, Native American),
age (over 40), sex (female), and in reprisal when on February 1, 2000,
she was informed that the agency's records showed that she was still on
the payroll (even though she had been terminated on September 13, 1999).
Complainant claims that she received a letter from the agency on February
14, 2000, informing her that the personnel office had mistakenly treated
her September 13, 1999 termination as a resignation which resulted in her
being denied unemployment benefits on October 1, 1999. Complainant has
not challenged the agency's framing of the complaint.
The record indicates that on February 14, 2001, the agency issued
its decision dismissing the complaint for failure to state a claim,
pursuant to 29 C.F.R. � 1614.107(a)(1).3 The agency stated that on
September 13, 1999, complainant returned her badge and identification,
but did not submit her letter of resignation. Thereafter, on November 12,
1999, during her Absence Without Leave, the agency issued complainant a
notice of her removal. The agency indicated that its personnel office
mistakenly coded complainant's termination as a resignation with an
effective date of November 19, 1999. On February 14, 2000, the agency's
official advised complainant about this mistake and asked her to contact
the agency if she wanted to change that; otherwise, the resignation would
remain. The agency indicated that complainant did not contact the agency
to change her last personnel action from resignation to termination.
On appeal, complainant does not dispute the foregoing statements.
Complainant claimed that on October 17, 1999, she applied for unemployment
benefits, but her request was denied because the California Employment
Development Department (EDD) determined that she quit her job without
good cause and she was still on the agency's payroll. The agency stated
that complainant's termination did not take effect until November 19,
1999, and the agency did not receive her letter of resignation when
she returned her badge and ID on September 13, 1999. Therefore, the
agency stated that on October 17, 1999, when complainant applied for
unemployment benefits, she was properly on the agency's payroll.
The agency stated, and we agree, that complainant appears to be
challenging the decision of the California EDD, i.e., denying her
unemployment benefits, and the manner in which a determination was made
by the California EDD. The proper forum for complainant to challenge the
decision of the California EDD would be the unemployment compensation
process itself. Thus, the Commission finds that the agency properly
dismissed the complaint for failure to state a claim. It is noted that
the instant complaint clearly does not involve complainant's November 19,
1999 termination.
Accordingly, the agency's final decision dismissing the complaint is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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), 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 (S0408)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0408)
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
5/29/2008
__________________
Date
1 In her letter dated December 21, 2007, complainant indicates that her
name has changed from Aiyesha Sharieff (the name she used when she filed
her complaint and the instant appeal) to Dolores L. Arellano.
2 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
3 The record indicates that the agency's February 14, 2001 dismissal
decision at issue was sent to complainant's address of record at
that time. Complainant does not dispute her receipt of this decision.
Although it appears that complainant might have changed her address
after filing the complaint, there is no evidence that she notified the
agency of an address change. Also, it appears that she made no inquiry
concerning her complaint until May 10, 2005, i.e., five years after
filing of the complaint and four years after the agency's dismissal
decision, when she requested a hearing before an EEOC Administrative
Judge (AJ). In response to the AJ's Show Cause due to the agency's
failure to provide the complaint file, the agency, on December 12,
2005, responded that it no longer had the complaint file due to its
relocation and due to its age. However, the agency was able to locate
an electronic copy of the complaint file, including its February 14,
2001 dismissal decision, which was submitted to the AJ. On December 13,
2005, the AJ forwarded these documents to complainant. In response,
complainant requested the AJ grant a hearing on her case. On February
14, 2006, the AJ issued an Order Dismissing Case with Prejudice since
complainant failed to show that she filed a complaint within the time
period relevant to her 2005 request for hearing. On March 9, 2006,
the agency issued its final order implementing the AJ's dismissal.
Thereafter, complainant filed the instant appeal. Since the agency's
February 14, 2001 decision dismissing the complaint is affirmed, we need
not address its March 9, 2006 action dismissing the complaint.
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0120063018
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036