0120072264
08-21-2007
Elizabeth Ortiz, Complainant, v. Mike Leavitt, Secretary, Department of Health and Human Services, Agency.
Elizabeth Ortiz,
Complainant,
v.
Mike Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120072264
Agency No. CDC01782006
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated February 15, 2007, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In her
complaint, complainant alleged that she was subjected to discrimination
on the basis of reprisal for prior protected EEO activity under Title VII
of the Civil Rights Act of 1964 when on April 14, 2006 she was removed
from her employment with the agency during her probationary period.
The record discloses that complainant received the notice of right to
file a formal complaint on August 18, 2006 at her address of record.
Although the notice indicated that complainant had to file her formal
complaint within fifteen (15) calendar days of its receipt, complainant
did not file her formal complaint until November 21, 2006, which
is beyond the limitation period. In complainant's appeal statement
dated April 2, 2007, she contends that she was out of the country on
active military duty, advising the agency of her deployment status and
contact information during the processing of the instant complaint.
Specifically, complainant states in her appeal statement that she was
deployed to active duty from "June 2007 through November 2007" and from
"December 31, 2007 to March 2, 2007." The Commission determines that
complainant has incorrectly indicated 2007 dates in her appeal argument
rather than dates occurring in 2006. We further find evidence of record
that complainant was deployed on various dates from June 4 2006 to June
21, 2006, from July 8, 2006 to September 28, 2006 and again from October
1, 2006 to October 31, 2006. Moreover, the record contains a copy of
an email message from complainant indicating that a representative with
power of attorney to act in her behalf regarding the complaint at issue
was available at a New Mexico address. Complainant also indicated in
her email message that she had not received any a "report" from the
agency regarding her complaint. Finally, we note that the agency states
in its final decision that upon complainant's request when she returned
from active duty in November 2006, the agency mailed her another copy of
its notice of right to file on November 15, 2006. Complainant's formal
complaint was filed November 21, 2006.
Upon review, the Commission finds that the complaint was improperly
dismissed pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(2)
for the untimely filing of the formal complaint. In reaching this
conclusion, the Commission notes that the 15-day limitation period for
filing a formal complaint may be tolled in extraordinary circumstances.
Monday v. Secretary of the Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988).
The Commission determines that complainant's deployment during the
pendancy of this complaint is sufficient grounds to toll the time for
filing the formal complaint.
Accordingly, the agency's final decision dismissing complainant's
complaint as untimely is reversed and the complaint is remanded to
the agency for processing in accordance with this decision and the
Order below.
ORDER (E0900)
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 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 (K0501)
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)
(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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 21, 2007
__________________
Date
2
0120072264
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120072264