Eileen Bull, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionJul 13, 2000
01a02619 (E.E.O.C. Jul. 13, 2000)

01a02619

07-13-2000

Eileen Bull, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Eileen Bull v. Department of the Treasury

01A02619

July 13, 2000

Eileen Bull, )

Complainant, )

)

v. ) Appeal No. 01A02619

) Agency No. DOT-1-00-1110

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Agency. )

____________________________________)

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision (FAD) dismissing her complaint of unlawful employment

discrimination brought under Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. � 2000e et seq.<1> We accept the appeal pursuant

to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �

1614.405).

In its FAD, the agency determined that at the conclusion of

EEO counseling, complainant was provided with a notice of final

interview/notice of right to file a formal complaint, which she signed

on December 18, 1998. However, the agency found that she failed to file

her formal complaint until October 21, 1999, months past the 15-day

filing period, and dismissed her complaint as untimely filed.<2> The FAD

additionally noted complainant's contention that she filed the complaint

at both the agency's �FAA Civil Rights Office� and the �Departmental

Office of Civil Rights (DOCR),� but found that because the DOCR office

was the proper filing place, and it had no record of the complaint,

the complaint must be dismissed as untimely.<3> Furthermore, the FAD

indicated that the complaint should be dismissed because for failure to

prosecute, determining that complainant only checked on the status of

the complaint in October 1999.

On appeal, complainant contends that the complaint was timely filed at

both EEO offices, and that fact that the FAA office acknowledges timely

receipt suggests that the Departmental office probably lost the complaint.

Moreover, complainant argues that a timely filing at one of the EEO

offices places the agency on constructive notice of the filing, such that

the instant complaint should be deemed timely. Complainant additionally

argues that there exists inherent confusion in the two office system,

which she claims was compounded in this instance by instructions from

her EEO Counselor regarding the need to provide the FAA office with the

complaint in order to obtain a copy of the counseling report. Finally,

complainant denies that she failed to prosecute the complaint, noting that

because her other complaints with the agency have taken years to process,

a ten month period did not seem unreasonable. Complainant states,

moreover, that the instant complaint was under discussion in connection

with the settlement of another complaint.

In response, the agency argues that the complaint sent to the FAA office

was merely a courtesy copy; that it did not constitute an effective

filing; and that complainant was unable to demonstrate that she filed

a timely complaint with the Departmental EEO office. The agency

additionally contends that the complaint should be dismissed because

complainant failed to use due diligence in pursuing it.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(2)) states, in pertinent part, that

an agency shall dismiss a complaint which fails to comply with the

applicable time limits contained in Fed. Reg. 37,644, 37,656 (1999)(to

be codified and hereinafter referred to as 29 C.F.R. � 1614.106), which,

in turn, requires the filing of a formal complaint within fifteen (15)

days of receiving notice of the right to do so. However, the Commission

regulations governing computation of time limits also allow for waiver

and/or equitable tolling under 29 C.F.R. � 1614.604(c), in those cases

where the complainant sets forth adequate evidence or argument to justify

tolling the time limit.

Here, we find credible complainant's argument that she simultaneously

mailed her complaint to both of the agency's EEO offices. The record

reflects that the agency's FAA office acknowledges its timely receipt.

We also find credible complainant's assertion that given the agency

bifurcated two office EEO processing system, timely receipt of the

complaint at one office should place the agency on notice of the complaint

filing. Although the notice of right to file the formal complaint does

specify the correct office and address to which the complaint must be

delivered, it also contains the FAA office address as well.

Finally, we disagree with the agency that complainant's failure to

inquire about the status of this complaint constitutes failure to

prosecute. Instead, we find that believing that she had timely filed

the complaint, and then having it subsequently referenced during the

course of a settlement attempt for a pending complaint, it would have

been reasonable for complainant to assume that the instant complaint

was being processed.

Accordingly, the Commission determines that complainant has set forth

sufficient justification to warrant tolling the time limits in this

matter, such that the agency improperly dismissed the instant complaint

for untimely filing. We REVERSE and REMAND this case to the agency for

further processing consistent with the ORDER below.

ORDER (E0400)

The agency is ORDERED to process the remanded claims in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 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 (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 (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

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.

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:

July 13, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2In her complaint, complainant claimed that the agency retaliated against

her for engaging in prior EEO activity when her name was not included

on a selection list for two position vacancies.

3 The record reflects that the agency uses two different EEO offices

to carry out different EEO processing functions. One office is

responsible for counseling (FAA office) and the other is responsible

for post-complaint processing (DOCR).