Danika Mac Master, Complainant,v.Norman Y. Mineta, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionDec 22, 2000
01a10810 (E.E.O.C. Dec. 22, 2000)

01a10810

12-22-2000

Danika Mac Master, Complainant, v. Norman Y. Mineta, Secretary, Department of Commerce, Agency.


Danika Mac Master v. Department of Commerce

01A10810

December 22, 2000

.

Danika Mac Master,

Complainant,

v.

Norman Y. Mineta,

Secretary,

Department of Commerce,

Agency.

Appeal No. 01A10810

Agency No. 00-63-01480D

DECISION

The instant matter is being processed pursuant to a Memorandum of

Understanding (MOU) entered into by the agency, the Bureau of the Census,

and the United States Equal Employment Opportunity Commission. The MOU

was entered into in order to process complaints arising from the 2000

Decennial Census more effectively and efficiently.

Pursuant to the MOU, individuals file their complaints directly with

the Commission. The Commission, through its Washington, D.C. Field

Office, then conducts an early assessment of complaints and neutral

evaluation of cases. The Washington, D.C. Field Office of the Commission

establishes a record of the complaint by obtaining an affidavit from the

complainant and by contacting an agency official to obtain the necessary

information on the complaint. Based on the record established by the

Washington, D.C. Field Office, the Washington, D.C. Field Office will:

(1) notify the agency that the individual has elected not to file a

formal complaint; (2) issue a decision dismissing the complaint and

notify the complainant of his or her right to appeal the decision to

the Office of Federal Operations; (3) conduct settlement negotiations;

or (4) notify the complainant that the complaint has been accepted and

forward the complaint to the agency for further investigation.

The Commission's Washington, D.C. Field Office dismissed the instant

complaint for failure to file a timely formal complaint. In her formal

complaint, complainant alleged discrimination on the bases of sex (female)

and age (date of birth: October 25, 1981) when she was terminated.

In its dismissal, the agency presumed that complainant received notice of

her right to file a formal complaint within five days of its mailing on

May 1, 2000. The agency found that complainant did not file her formal

complaint until June 1, 2000, more than fifteen days after her presumed

receipt.

On appeal, complainant argues that she returned her formal complaint

on the fifteenth day after she received notice of the right to do so.

The record contains a certified receipt card showing that complainant

received the notice, but the card is not dated. The record also contains

the envelope in which complainant sent her formal complaint, postmarked

June 1, 2000.

Complainant must file her formal complaint within fifteen (15) days

of receiving notice of the right to do so. See 29 C.F.R. � 1614.106.

Generally, complaints that fail to comply with this time limit must be

dismissed. See 29 C.F.R. � 1614.107(a)(2). Neither the agency nor the

Field Office informed complainant that the Notice would be considered

received within five days of mailing. Therefore, the Field Office has

no basis for making this presumption. Since no evidence indicates that

complainant received the Notice more than 15 days before she filed the

complaint, the Commission cannot find that her formal complaint was

untimely.

The Commission does find, however, that complainant fails to state a claim

with respect to the claim of age discrimination. EEOC Regulations require

the dismissal of complaints that fail to state a claim. See 29 C.F.R. �

1614.107(a)(1). To state a claim, complainant must allege present

harm inflicted on the basis of race, sex, religion, national origin,

age, disability, or prior protected activity. See Diaz v. Department

of the Air Force, EEOC Request No. 05931049 (April 21, 1994). The Age

Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �

621 et seq., protects employees and applicants for employment over

the age of forty. The record indicates that complainant is under forty

years of age. Therefore, complainant is not entitled to protection under

the ADEA. Accordingly, her claim of age discrimination is dismissed for

failure to state a claim. Her claim on the basis of sex must proceed

to investigation.

CONCLUSION

Accordingly, the dismissal with respect to age discrimination is

AFFIRMED. The Field Office's dismissal with regard to the claim of sex

discrimination is REVERSED and the sex discrimination claim is REMANDED

for further investigation.

ORDER

As provided in the Memorandum of Understanding, the Washington Field

Office shall, with regard to the remanded claim, conduct settlement

negotiations and, if unsuccessful, forward the files to the agency for

investigation. The agency shall complete its investigation within 180

days upon receipt of the file. At the conclusion of the investigation,

the agency must forward a copy of the investigation to complainant,

and provide her rights to a final agency decision, or a hearing with

an EEOC Administrative Judge. The agency must provide the Compliance

Officer with a copy of its cover letter sending the investigation and

notice of rights to complainant as indicated herein. If the complaint

has been settled or otherwise closed within the 180 day time frame, then

the agency must provide the Compliance Officer with notice of such.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)

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)(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 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 (T0900)

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 (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

December 22, 2000

__________________

Date