01A52749
04-21-2006
Marilyn M. Wevley, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Marilyn M. Wevley,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A52749
Agency No. 04-65888-09179
DECISION
Upon review, the Commission finds that the agency improperly dismissed
complainant's complaint, pursuant to 29 C.F.R. � 1614.107(a)(2). In her
complaint, complainant alleged that she was subjected to discrimination on
the bases of sex (female) and (reprisal). Specifically, the record
indicates that, on March 9, 2004, complainant borrowed a tool from a co-
worker. Later in the day, the co-worker came to complainant's work area
and demanded that she return the tool to him. Complainant refused because
she was not finished using the tool. The two employees argued.
Complainant picked up the tool and her co-worker grabbed her by the wrist.
The two employees struggled briefly for possession of the tool. After
releasing complainant, the two argued again and the co-worker left the
area. Complainant met with an EEO counselor on April 2, 2004. On April
15, 2004, she and her non-attorney representative received notice of her
right to file a formal complaint. The notice indicated that she had to
file her complaint within fifteen (15) calendar days of its receipt.
According to the agency, complainant's formal complaint was received by fax
on November 23, 2004, seven months after she received the notice.
Complainant, in November 2004 and on appeal, argued that she had already
filed her complaint, by fax, on April 30, 2004.[1] She provided a copy of
an April 30, 2004 fax transmission report that indicated that 19 pages were
sent from the Coronado Human Resources Office to a certain fax number. As
noted by the agency, the documentation provided by complainant did not
indicate the identity of the sender or the recipient. Also, the agency
noted that the receiving fax number did not correspond to any number in the
Office of the Deputy EEO Officer, the official designated in the notice for
receiving complaints. According to the agency, the 19 page transmission
was never received by the Office of the Deputy EEO Officer nor the Dispute
Resolution Center.[2] In addition to the above, the agency questioned
complainant's contention that her November 23rd transmission was a "second
transmittal." In this regard, the agency noted the fact that the April
30th transmittal consisted of 19 pages, while the November 23rd
transmission was only 12 pages. The agency also noted that three documents
in the November 23rd transmission could not have existed at the time the
April 30th transmission was sent. These documents were the cover sheet
dated November 23rd, the April 30th transmission report which could only
have been generated after the documents were sent, and an EEO policy
statement that was signed on November 3, 2004, by an agency official.
On appeal, complainant maintained that, on May 11, 2004, A-1, the ADR
Program Specialist, acknowledged the receipt of both her April 30th fax and
of "a hard copy," which complainant maintained was mailed on April 29th.[3]
Complainant cites as evidence her complaint was filed "correctly and in a
timely manner," the fact that A-1 scheduled mediation meetings on May 13,
2004 and July 13, 2004. Unlike complainant, however, we do not find that
the scheduling of mediation meetings is evidence that complainant's
complaint was received in April 2004. We note in this regard that A-1, in
a May 11, 2004 letter, indicated that the mediation efforts were based on
"an EEO intake received at the Coronado Complex Site Office on March 22,
2004."
An examination of the copy of the April 30th fax transmission report that
complainant provided to the agency in November 2004 reveals the following
notation, "fax # provided per [A-1]." Thus, complainant's un-rebutted
assertion is that the fax number that she used to file her formal complaint
was provided by ADR Program Specialist, an agency official. A review of
the notice itself indicates that, while an address was provided for mailing
the formal complaint, a telephone number was not provided making inquiries
or for faxing documents. Assuming that complainant's un-rebutted assertion
is correct, we find that she has provided an adequate explanation for why
she sent her formal complaint to the wrong location. Based on the specific
facts of this case, the Commission will exercise its discretion to
equitably toll the running of the 15-day time limitation period. See 29
C.F.R. � 1614.604(c).
Accordingly, we will REVERSE the agency's final decision and REMAND
complainant's complaint in accordance with the Order below.
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
____04-21-06______________
Date
-----------------------
[1] Complainant maintained that the November 23, 2004 transmission was a
"second transmittal."
[2] On appeal, the agency described the office where the April 30th
transmission was sent as "an unrelated office of the Navy Department."
[3] The agency also maintained that it never received a mailed copy of the
formal complaint and noted the lack of evidence, such as a postmarked
envelope, proving that the documents were mailed as alleged.