0120081708
08-26-2008
Jonica Forney, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Jonica Forney,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120081708
Agency No. 2004-0637-2006101753
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated February 5, 2008, 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 for untimely filing of the formal complaint.
During the relevant period, complainant was employed as a Program Support
Assistant at a North Carolina medical center of the agency. On March 22,
2006, complainant initiated contact with an EEO Counselor (S1) alleging
that the agency subjected her to hostile work environment harassment.
Accompanied by a letter dated April 20, 2006 to complainant's address of
record, S1 sent complainant a Notice of Right to File a Formal Complaint
(NORF). In the NORF, S1 informed complainant of her right to file a
formal complaint within 15 days of receipt of the NORF. In a formal
complaint dated July 26, 2006 and sent via FedEx on August 7, 2006,
complainant alleged that the agency subjected her to harassment on
the bases of race (African-American) and reprisal for prior protected
EEO activity when it denied her employment opportunities, lodged false
accusations against her, and assigned her the duties of a higher grade
position. Further, she alleged that her supervisor denied her right to
review her 2005-2006 performance appraisal.
During the agency's investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). Subsequently, the agency
filed a Motion to Dismiss for untimely filing of the formal complaint.
The agency stated that, on April 20, 2006, it sent the NORF to complainant
via certified mail and regular mail to complainant's address of record.
The agency stated that the certified NORF was returned unclaimed on May
31, 2006 and, on July 18, 2006, complainant contacted S1 stating that
she did not receive a NORF. The agency stated that it resent the NORF
on July 19. The agency acknowledged that it accepted complainant's
complaint for investigation, but stated such does not prohibit it from
later dismissing the matter procedurally. Further, the agency stated
that the complaint is dated July 27 but complainant did not send the
complaint until August 7. In response, complainant stated that she did
not receive the original NORF and she called S1 who issued a subsequent
NORF. She stated that she filed her formal complaint within a timely
manner of the second NORF, and that the agency accepted her claim.
The AJ dismissed the instant complaint for untimely filing. Specifically,
the AJ stated that S1 informed complainant of her right to file a formal
complaint on July 18 when complainant called regarding the status of her
claim and mailed the second NORF on July 19, but complainant failed to
justify why she waited until August 7 to actually file her complaint.
In its February 5 final decision, the agency accepted and fully
implemented the AJ's decision. Complainant filed the instant appeal,
stating that she did not receive the second NORF until July 27 so her
formal complaint is timely.
"[W]here, as here, there is an issue of timeliness, 'an agency always
bears the burden of obtaining sufficient information to support a reasoned
determination as to timeliness.' " Guy v. Dep't of Energy, EEOC Request
No. 05930703 (January 4, 1994) (quoting Williams v. Dep't of Defense,
EEOC Request No.05920506 (August 25, 1992)). Further, in Ericson v. Dep't
of Army, EEOC Request No. 05920623 (January 14, 1993), the Commission
stated that "the agency has the burden of providing evidence and/or proof
to support its final decisions." Here, complainant stated that she did
not receive the initial NORF and the agency has not presented evidence
showing otherwise. The agency stated that it resent the NORF on July
19, 2006, by first class mail. The fifteen-day timeframe for filing
the formal complaint did not start to run until complainant's receipt
of the mailed July 19 NORF. 29 C.F.R. �1614.106(b). While there is
no proof of when complainant received the July 19 NORF, complainant's
filing on August 7 was reasonable as it was within fifteen days of a
five-day presumption date for NORF receipt. Based on the above and after
a careful review of the record, we find that the agency did not satisfy
the aforementioned burdens. We REVERSE the final agency decision and
REMAND the matter to the agency for further processing in accordance
with this decision and the ORDER below.
ORDER
The agency is ordered to process the remanded complaint from the point
processing ceased in accordance with 29 C.F.R. Part 1614. 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. Within this same timeframe, the agency shall also re-issue to
complainant a copy of the investigative file and a notice of right to
request a hearing or an immediate final decision. 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, a copy
of the notice that accompanied the investigative file, and a copy of the
appropriate notice of rights must be sent to the Compliance Officer as
referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 (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 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 (R0408)
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 (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
August 26, 2008
__________________
Date
2
0120081708
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120081708