Juelithia G. Zellars, Complainant,v.Dr. James G. Roche, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionOct 20, 2004
01A43633_r (E.E.O.C. Oct. 20, 2004)

01A43633_r

10-20-2004

Juelithia G. Zellars, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.


Juelithia G. Zellars v. Department of the Air Force

01A43633

October 20, 2004

.

Juelithia G. Zellars,

Complainant,

v.

Dr. James G. Roche,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 01A43633

Agency No. 9L2W03151L04

DECISION

Upon review, the Commission finds that complainant's complaint was

improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), due to the

untimely filing of the formal complaint. In her complaint, complainant

alleged that she was subjected to discrimination on the bases of race

and color when:

The agency continues to attempt to remove complainant from federal

service.

In May 2003, complainant's request to attend a briefing was denied.

In May 2003, the alternate time-keeper threatened complainant's time

and attendance report, and stated that he hoped she would not get paid.

On May 25, 2003 and January 25, 2003, complainant's training requests

were denied.

Complainant did not receive two appraisal feedback sessions prior to

her receipt of her appraisal on June 4, 2003.

On June 4, 2003, complainant discovered her 971 folder was in disarray

with derogatory documents on the top and her accomplishments on the

bottom of the folder.

Complainant's numerical appraisal did not match the marks and comments

that she received on her 860B feedback form in June 2003.

On June 3, 2003, complainant's alternate work schedule request was denied.

On June 9, 2003, complainant was accused of not being a team player.

The record discloses that the agency mailed complainant the notice

of right to file a formal complaint on Monday, September 29, 2003.

The notice indicated that complainant had to file a formal complaint

within fifteen (15) calendar days of its receipt. The agency sent the

notice to complainant by regular, first class mail.

In its final decision, the agency presumed that complainant received

the notice on or before Saturday, October 4, 2003. The agency reasoned,

therefore, that complainant should have filed her complaint on or before

Monday, October 20, 2003. Complainant did not file her formal complaint

until Friday, October 24, 2003. On appeal, the agency notes that

the Commission will recognize the existence of a 5-day presumption for

receipt of notices of filing deadlines when such notices are delivered by

U.S. mail. However, we find nothing in the notice complainant received

informing complainant that the agency would presume that the notice

was received by her five days after the agency mailed it. The record

does not show when complainant received the notice of the right to file

a complaint. Therefore, we can not find the complaint to be untimely

filed. Accordingly, the agency's final decision dismissing complainant's

complaint for untimely filing of the complaint is improper.

We therefore REVERSE the agency's dismissal of the complaint. We REMAND

the complaint to the agency for further processing as directed herein.

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

October 20, 2004

__________________

Date