Carolyn M.,1 Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionMay 20, 20160520150328 (E.E.O.C. May. 20, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Carolyn M.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. Request No. 0520150328 Appeal No. 0120150107 Agency No. 144008001490 DECISION ON REQUEST FOR RECONSIDERATION The Agency requested reconsideration of the decision in EEOC Appeal No. 0120150107 (February 19, 2015). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). In her underlying complaint filed on May 12, 2014, Complainant alleged that the Agency subjected her to discrimination on the bases of sex and in reprisal for prior protected activity when: 1. Complainant was issued a Proposed Suspension letter dated January 14, 2014; 2. Complainant was assigned unfamiliar and more difficult work on November 7, 2013 and February 11, 2014; and 3. Complainant experienced increased scrutiny of her work by her supervisor on January 30, 2014 and February 3, 2014. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 0520150328 2 In our prior decision, the Commission reversed the Agency’s dismissal of Complainant’s complaint for failure to timely file a formal complaint and failure to state a claim. The Agency filed the instant request for reconsideration. Therein, the Agency argues that the Commission’s decision was issued prior to its deadline to file a brief. According to the Agency, the Agency’s brief was due on February 25, 2015, but the previous decision was issued prior to the expiration of the time limitation. The Agency requests the Commission’s decision be vacated and remanded as a result of the administrative error. Additionally, the Agency argues that it properly dismissed Complainant’s complaint on the grounds it was untimely filed. After review of the record, we find that due to an inadvertent administrative error, the Commission, when adjudicating EEOC Appeal No. 0120150107, failed to note that the Agency’s brief was due on February 25, 2015. As a result of this error, and in the interest of equity and due process, the Commission will consider the brief and supporting documentation submitted by the Agency in support of its request for reconsideration. Upon review, we acknowledge that the record contains mixed information regarding when Complainant’s attorney received the Notice of Right to File. Where, as here, there is an issue of timeliness, “[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness.” Guy, v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition, in Ericson v. Department of the 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.” In the present case, we find the Agency has not provided sufficient evidence to show that Complainant’s attorney received the Notice of Right to File on April 24, 2014, and that the filing of her complaint on May 12, 2014, was untimely. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. §1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120150107 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order herein. ORDER (E0610) 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 0520150328 3 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 (K0610) 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 77960, Washington, DC 20013. 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. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) 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. 0520150328 4 RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations May 20, 2016 Date Copy with citationCopy as parenthetical citation