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