01A22630
07-12-2002
Donna M. Inman, Complainant, v. Christine Todd Whitman, Administrator, Environmental Protection Agency, Agency.
Donna M. Inman v. Environmental Protection Agency
01A22630
July 12, 2002
.
Donna M. Inman,
Complainant,
v.
Christine Todd Whitman,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 01A22630
Agency No. 2001-0101-HQ
DECISION
Complainant appealed to this Commission from the agency's March 14,
2002 dismissal of her employment discrimination complaint. Complainant
alleged discrimination on the bases of race (African-American) and color
(black) when:
In August 2000, complainant was provided a sixty (60) day detail as the
Measure for Success Team Leader rather than a 120 day detail;
On March 23, 2001, complainant learned that she was not selected for
a detail assignment as the Acting Integrated Data for Enforcement and
Analysis Team Leader; and
On July 12, 2001, complainant was denied a promotion to GS-14 and not
given an explanation of the promotion/selection process.
The agency dismissed the entire complaint for failure to file a timely
formal complaint. The agency found that complainant received notice
of the right to file her complaint on October 17, 2001, but did not
file her complaint until November 15, 2001. In addition, the agency
dismissed claims (1) and (2) for untimely counselor contact, finding
that complainant did not contact an EEO Counselor until August 21, 2001,
more than forty-five days after the incidents alleged in claims (1) and
(2) occurred.
On appeal, complainant contends that she received her last �interview�
with the EEO Counselor by telephone on October 17, 2001, but did not
receive a notice of right to file her complaint until November 1, 2001.
Although complainant concedes that she did not contact an EEO Counselor
until August 21, 2001, complainant contends that the discriminatory
incidents occurred on July 12, 2001, when managers made comments
regarding complainant's qualifications and competencies, not on the
other dates listed.
The record includes a copy of the notice of right to file a complaint.
The form is dated October 23, 2001, and signed as received by complainant
on November 1, 2001. The agency provided no certified receipt card or
other written documentation of the date complainant received the notice.
The record also includes a copy of e-mails written between complainant
and Office of Civil Rights staff members. In these e-mails, complainant
informs the agency that the date of her final interview was October
17, 2001. Further, complainant outlines her claims as articulated by
the agency in her correspondence.
Complainants must file their formal complaints within fifteen (15) days of
receiving the right to do so. See 29 C.F.R. � 1614.106. The regulations
require the dismissal of claims that fail to comply with this time limit.
See 29 C.F.R. � 1614.107(a)(2).
The Commission finds that the agency's dismissal of complainant's entire
complaint was improper. Complainant could not have received the notice of
final interview and right to file a formal complaint on October 17, 2001;
the document was dated October 23, 2001 by the EEO Counselor. Further,
the record shows that complainant received the document on November 1,
2001. Therefore, her November 15, 2001 formal complaint was timely filed.
Complainant must raise claims of discrimination within forty-five (45)
days of their occurrence. See 29 C.F.R. � 1614.105(a)(1). The agency
may dismiss claims that fail to comply with this time limit. See 29
C.F.R. � 1614.107(a)(2).
The Commission finds that complainant should have suspected discrimination
within forty-five days of each discrete nonselection or detail denial.
Claims (1) and (2) occurred more than forty-five days prior to the
date she contacted an EEO Counselor, and complainant has not provided
adequate justification for her failure to contact an EEO Counselor sooner.
Therefore, the agency's dismissal of claims (1) and (2) is AFFIRMED.
CONCLUSION
Accordingly, the agency's dismissal of claims (1) and (2) is AFFIRMED.
The agency's dismissal of claim (3) is REVERSED, and the claim is REMANDED
for further processing.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (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 12, 2002
__________________
Date