0120083104
09-11-2008
Sonyja L. Grant, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Sonyja L. Grant,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120083104
Agency No. ARUSAR08FEB00537
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 28, 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.
On May 14, 2008, complainant, an Information Technology Specialist,
filed an EEO complaint alleging that she was subjected to discrimination
on the basis of reprisal for prior protected EEO activity when:
1. in October 2005, her supervisor counseled her on key control and
appointments memos;
2. in November 2005, her supervisor accused her for lying;
3. in December 2005, her supervisor revoked her military transfer and
counseled her;
4. in December 2005, a 15-6 investigation was conducted and her net work
access was removed;
5. in February 2006, her supervisor denied her military transfer;
6. in April 2006, she received a 2-day suspension;
7. in May 2006, she received a 4-day suspension;
8. in February 2008, her supervisor placed her on a Performance
Improvement Plan (PIP);
9. in January 2008, her supervisor suspended her for 14 days;
10. in February 2008, her supervisor delayed her military transfer;
11. in March 2006, her supervisor denied her a Within Grade Increase;
12. in May 2006, she received a 2-day suspension;
13. in August 2006, she received a 4-day suspension;
14. in June 2006, she was placed on a PIP;
15. in December 2007, she received a 14- day suspension;
16. in April 2008, her network Access was removed; and
17. in April 2008, her new supervisor humiliated and intimidated her in
public.
On May 28, 2008, the agency issued a final agency decision dismissing
claims 1 through 15 as untimely on the grounds that complainant received
the Notice of Right to File her complaint on March 31, 2008 but her formal
complaint dated April 25, 2008, filed via facsimile transmission was
not received at the EEO office until May 14, 2008. The agency dismissed
claims 16 and 17 on the grounds that they are identical to the claims
in her complaint DA Docket No. ARUSARO8APR01555 on May 27, 2007.
EEOC Regulation 29 C.F.R.� 1614. 106 (b) provides that a complainant
must file a complaint with the agency within 15 days of receipt of
the notice required by � 1614.105(d). Section 1614.107(a)(2) provides
that an agency shall dismiss a complaint that fails to comply with the
applicable time limits contained � 1614.105.
The record discloses that the agency issued the Notice of Right to File on
March 10, 2008, and it was returned to the agency unclaimed. The agency
on March 31, 2008 forwarded the Notice to complainant via domestic mail
which the agency assumed that complainant received on March 31, 2008.
Although the notice indicated that complainant had to file a formal
complaint within fifteen (15) calendar days of its receipt, complainant's
formal complaint dated April 25, 2008, was not received at the agency
until May 15, 2008, which is beyond the limitation period. On appeal,
complainant did not state when she received the notice nor challenge
the agency's presumption that she received the Notice on March 31,
2008. Complainant has not offered adequate justification to warrant an
extension of the time limit for filing the complaint. Accordingly, the
agency's final decision dismissing claims 1 through 15 in complainant's
complaint is AFFIRMED.
The agency dismissed claims 16 and 17 in the complaint stating
that they are identical to the claims in complainant's DA Docket
No. ARUSAR08APR01555 filed on May 27, 2008. The record submitted by
the agency does not contain a copy of that complaint, without which
the Commission cannot adjudicate the correctness of the agency's
decision. Accordingly, the agency's decision to dismiss claims 16 and
17 in complainant's complaint is REVERSED and those claims are REMANDED
to the agency for further processing as ordered below.
ORDER (E0408)
The agency is ordered to process the remanded claims 16 and 17 in the
complaint 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 (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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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
September 11, 2008
Date
2
0120083104
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120083104