0120081057
03-28-2008
Pamela D. Davis, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Pamela D. Davis,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120081057
Agency No. 200306742007102947
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 6, 2007, dismissing her complaint of unlawful
employment discrimination claiming violations of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The agency dismissed the complaint pursuant
to 29 C.F.R. � 1614.107(a)(2), asserting untimely filing of the formal
complaint.
In her formal EEO complaint, complainant alleged that she was subjected
to discrimination on the bases of race (African-American), sex (female),
and age when she was reassigned to the Specialty Clinic on April 27, 2007.
The record indicates that following the completion of EEO counseling,
complainant and her representative were mailed the notice of final
interview which indicated complainant had to file a formal complaint
within fifteen (15) calendar days of its receipt. The record also
contains a signed certified mail return receipt ("green card") which
indicates the notice of final interview was received by complainant on
October 1, 2007. It is undisputed that complainant filed her formal
complaint on October 16, 2007, by facsimile.
In its dismissal decision, the agency stated that complainant and her
representative received the notice of final interview on September 28,
2007, with the fifteen-day filing deadline ending on October 13, 2007.
Therefore, the agency found complainant's October 16, 2007 filing to be
untimely. It appear, however, that the agency was relying on the date
complainant's representative received the notice of final interview,
rather than counting the filing period from complainant's documented
receipt of the notice on October 1, 2007. Complainant, however, indicated
on her complaint form that her representative was not an attorney, and
there is nothing in the record which indicates otherwise. Since there is
no evidence that complainant's representative was an attorney, receipt
of the notice of final interview by complainant determines when the
limitations period begins to run. See 29 C.F.R. � 1614.605(d); Carrigan
v. United States Postal Service, EEOC Request No. 05950264 (August 31,
1995); Scroggins v. U.S. Postal Service, EEOC Request No. 05901153 (June
18, 1991) (receipt of a document by a non-attorney representative is not
sufficient to establish constructive notice on the part of a complainant).
When counted from complainant's receipt on October 1, 2007, the filing
of the formal complaint on October 16, 2007 was timely.
Accordingly, the agency's dismissal decision is REVERSED and the complaint
is REMANDED to the agency pursuant to the following ORDER.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with 29
C.F.R. � 1614.108 et seq. 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
March 28, 2008
__________________
Date
2
0120081057
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120081057