01992297
11-18-1999
Carolyn S. Roehrig, Complainant, v. Bill Richardson, Secretary, Department of Energy, Agency.
Carolyn S. Roehrig, )
Complainant, )
)
v. ) Appeal No. 01992297
) Agency No. 99 (001) OH
Bill Richardson, )
Secretary, )
Department of Energy, )
Agency. )
)
DECISION
The Commission finds that the agency's December 22, 1998 decision
dismissing Complainant's complaint on the grounds of untimely
complaint filing is not proper pursuant to the provisions of 29
C.F.R. �1614.107(a)(2).
The record shows that after attempts to resolve Complainant's informal
complaint of discrimination were unsuccessful, the agency issued a
notice of the right to file a formal complaint dated September 15, 1998.
The notice advised Complainant that if she decided to file a formal
complaint, it would have to be filed within 15 calendar days of her
receipt of the notice. By letter dated September 29, 1998, Complainant
asked the agency to grant her an extension of time to file her formal
complaint.
Complainant filed her formal complaint of discrimination on October
10, 1998. The agency issued a final decision dismissing the complaint
on the basis that it had been filed beyond the 15-day time limit.
The agency noted that �on September 17, 1998, the EEO counselor personally
hand-delivered [Complainant's] right to file a formal complaint along
with the Department's formal complaint form�. On appeal Complainant
claims that the complaint �was dismissed in error�.
The Commission has also consistently held that where there is an issue of
timeliness, the agency always bears the burden of obtaining sufficient
information to support a reasoned determination as to timeliness.
Williams v. Department of Defense, EEOC Request No. 05920506 (August
25, 1992). Regarding the instant complaint, the agency has not met this
burden. The record shows that the agency has not provided any evidence to
show the exact date of Complainant's receipt of the notice in question.
Moreover, the agency has failed to provide evidence sufficient to
determine that Complainant's September 29, 1998 request for an extension
of time to file her complaint was not granted. We find that the agency
has failed to provide independent evidence of the date of Complainant's
receipt of the notice and/or the agency's denial of her request for an
extension of time, i.e., affidavit by an appropriate agency official.
Accordingly, Complainant's complaint was improperly dismissed on the
basis of untimely complaint filing. The final agency decision is hereby
REVERSED. The complaint is REMANDED for a supplemental investigation
in accordance with this decision and applicable regulations.
ORDER
The agency is ordered to conduct a supplemental investigation regarding
the date Complainant allegedly received by hand-delivery the notice of
the right to file a formal complaint. Within sixty (60) days of the date
this decision becomes final, the agency shall provide affidavit(s) from
the appropriate agency official(s) regarding the alleged hand-delivery as
well as the denial, if any, of Complainant's September 29, 1998 request
for an extension of time. Said affidavit(s) will state the exact date of
Complainant's receipt of the notice of the right to file and will also
address the denial, if any, of her request for an extension of time.
If during the course of the supplemental investigation the agency finds
that Complainant failed to file her complaint within 15 calendar days of
the date she received the notice by hand-delivery, it shall then issue
a final decision dismissing the complaint and will provide Complainant
with all relevant information concerning his appeal rights. However, if
during the course of its supplemental investigation, the agency becomes
aware that Complainant's request for an extension of time was granted or
that she filed her complaint within the 15-day time limit, it shall then
process the complaint pursuant to the provisions of 29 C.F.R. �1614.108.
A copy of the agency's letter of acknowledgment to Complainant and/or a
copy of the final agency decision must be sent to the Compliance Officer
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
November 18, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
____________________