01a02619
07-13-2000
Eileen Bull, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Eileen Bull v. Department of the Treasury
01A02619
July 13, 2000
Eileen Bull, )
Complainant, )
)
v. ) Appeal No. 01A02619
) Agency No. DOT-1-00-1110
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dismissing her complaint of unlawful employment
discrimination brought under Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq.<1> We accept the appeal pursuant
to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �
1614.405).
In its FAD, the agency determined that at the conclusion of
EEO counseling, complainant was provided with a notice of final
interview/notice of right to file a formal complaint, which she signed
on December 18, 1998. However, the agency found that she failed to file
her formal complaint until October 21, 1999, months past the 15-day
filing period, and dismissed her complaint as untimely filed.<2> The FAD
additionally noted complainant's contention that she filed the complaint
at both the agency's �FAA Civil Rights Office� and the �Departmental
Office of Civil Rights (DOCR),� but found that because the DOCR office
was the proper filing place, and it had no record of the complaint,
the complaint must be dismissed as untimely.<3> Furthermore, the FAD
indicated that the complaint should be dismissed because for failure to
prosecute, determining that complainant only checked on the status of
the complaint in October 1999.
On appeal, complainant contends that the complaint was timely filed at
both EEO offices, and that fact that the FAA office acknowledges timely
receipt suggests that the Departmental office probably lost the complaint.
Moreover, complainant argues that a timely filing at one of the EEO
offices places the agency on constructive notice of the filing, such that
the instant complaint should be deemed timely. Complainant additionally
argues that there exists inherent confusion in the two office system,
which she claims was compounded in this instance by instructions from
her EEO Counselor regarding the need to provide the FAA office with the
complaint in order to obtain a copy of the counseling report. Finally,
complainant denies that she failed to prosecute the complaint, noting that
because her other complaints with the agency have taken years to process,
a ten month period did not seem unreasonable. Complainant states,
moreover, that the instant complaint was under discussion in connection
with the settlement of another complaint.
In response, the agency argues that the complaint sent to the FAA office
was merely a courtesy copy; that it did not constitute an effective
filing; and that complainant was unable to demonstrate that she filed
a timely complaint with the Departmental EEO office. The agency
additionally contends that the complaint should be dismissed because
complainant failed to use due diligence in pursuing it.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(2)) states, in pertinent part, that
an agency shall dismiss a complaint which fails to comply with the
applicable time limits contained in Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter referred to as 29 C.F.R. � 1614.106), which,
in turn, requires the filing of a formal complaint within fifteen (15)
days of receiving notice of the right to do so. However, the Commission
regulations governing computation of time limits also allow for waiver
and/or equitable tolling under 29 C.F.R. � 1614.604(c), in those cases
where the complainant sets forth adequate evidence or argument to justify
tolling the time limit.
Here, we find credible complainant's argument that she simultaneously
mailed her complaint to both of the agency's EEO offices. The record
reflects that the agency's FAA office acknowledges its timely receipt.
We also find credible complainant's assertion that given the agency
bifurcated two office EEO processing system, timely receipt of the
complaint at one office should place the agency on notice of the complaint
filing. Although the notice of right to file the formal complaint does
specify the correct office and address to which the complaint must be
delivered, it also contains the FAA office address as well.
Finally, we disagree with the agency that complainant's failure to
inquire about the status of this complaint constitutes failure to
prosecute. Instead, we find that believing that she had timely filed
the complaint, and then having it subsequently referenced during the
course of a settlement attempt for a pending complaint, it would have
been reasonable for complainant to assume that the instant complaint
was being processed.
Accordingly, the Commission determines that complainant has set forth
sufficient justification to warrant tolling the time limits in this
matter, such that the agency improperly dismissed the instant complaint
for untimely filing. We REVERSE and REMAND this case to the agency for
further processing consistent with the ORDER below.
ORDER (E0400)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
July 13, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2In her complaint, complainant claimed that the agency retaliated against
her for engaging in prior EEO activity when her name was not included
on a selection list for two position vacancies.
3 The record reflects that the agency uses two different EEO offices
to carry out different EEO processing functions. One office is
responsible for counseling (FAA office) and the other is responsible
for post-complaint processing (DOCR).