0720070050
09-10-2007
Estella Sugawara-Adams,
Complainant,
v.
Stephen L. Johnson,
Acting Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0720070050
Agency No. 2005-0081-R06
Hearing No. 450-2006-00103X
DECISION
On May 10, 2007, the agency filed an appeal with this Commission
concerning complainant's equal employment opportunity (EEO) 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 the underlying complaint, complainant, a Section
Chief of the Compliance Section in the Water Enforcement Branch,
alleged that she was discriminated against on the bases of race
(Asian American), national origin (Japanese), sex (female), and/or in
retaliation for prior EEO activity when: (1) on August 3, 2005, she
received an unsatisfactory interim performance rating; (2) as a result
of the unsatisfactory interim performance rating, she was demoted from
her GS-14 Section Chief position, effective August 21, 2005; and (3)
management's actions created and allowed a hostile work environment.
At the conclusion of the agency's investigation of her complaint,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ).
The AJ assigned to the matter held a two day hearing during which nineteen
witnesses testified. On March 26, 2007, the AJ issued a decision finding,
among other things, that complainant proved by a preponderance of the
evidence that the agency acted in reprisal with respect to her claim
of disparate treatment. She mailed her decision to the agency's Office
of Civil Rights (OCR) and the agency's designated representative on the
aforesaid date. The record reveals that OCR received a copy of the AJ's
decision on March 30, 2007, and the agency's designated representative
received it on April 2, 2007. On May 10, 2007, the agency issued its
notice of final order and appeal.
Pursuant to 29 C.F.R. � 1614.110(a), if an agency decides not to fully
implement the decision of an Administrative Judge then it must first issue
a final order and then simultaneously file an appeal with the Commission
in accordance with 29 C.F.R. � 1614.403. A copy of the appeal must be
appended to the final order. The Commission's Management Directive 110
(EEO MD-110), November 9, 1999, provides that if the agency fails to
issue a final order and file an appeal with the issuance of the order,
the Administrative Judge's decision will be deemed ratified by the agency
upon the expiration of the agency's 40-day period for accepting or not
accepting the Administrative Judge's decision. EEO MD-110, 9-7, n. 4.
In the present case, we find that the agency filed its appeal in an
untimely manner. We note in this regard that although the agency's
OCR received a copy of the AJ's decision on March 30, 2007, it did
not file its appeal with the Commission until May 10, 2007, which
was beyond the 40-day filing period. On appeal, the agency contends
that the 40-day period should begin to run on April 2, 2007, the date
the agency's designated representative received the AJ's decision,
and the date the AJ's decision was presumed received by OCR. Due to
Commission precedent, both arguments must fail. First, the Commission
has held that the practice and policy of the Commission is to send
correspondence relating to the disposition of the case to the agency
headquarters office that is designated to handle such matters, and the
agency headquarters office's receipt of the relevant correspondence is
the operative date for determining timeliness. Robinson v. Department
of the Army, EEOC Request No. 05930965 (September 22, 1994); Miller
v. United States Postal Service, EEOC Request No. 05A40871 (June 29,
2006) (Agency appeal was found timely where the Administrative Judge
erred by sending her decision solely to the agency's representative,
rather than the headquarters office designated to handle such matter).
In this case, OCR is the headquarters office designated to handle such
matters; the agency's designated representative is not.1 Therefore,
the Commission finds that the date OCR received the AJ's decision is
the controlling date for determining timeliness.
Second, the Commission has used the 5-day presumption rule only where
a document does not bear a legible postmark or there is no proof of the
date of receipt. Coker v. Environmental Protection Agency, EEOC Request
No. Request No. 05890869 (November 2, 1989); Greene v. Department of the
Army, EEOC Request No. 05880882 (March 3, 1989). The 5-day presumption
rule, however, does not operate where proof exists of the actual date
of receipt of a document. In the present case, the record reveals that
OCR actually received the AJ's decision on March 30, 2007, and the 5-day
presumption rule need not, and cannot, be applied. For the foregoing
reasons, we conclude that the agency's appeal was untimely filed.
Therefore, since the agency's appeal was untimely, we find that the
agency failed to take final action during the 40-day period set forth
at 29 C.F.R. � 1614.110(a). The AJ's decision accordingly became the
final action of the agency on May 9, 2007. McCue v. United States Postal
Service, EEOC Appeal No. 01A13411 (August 8, 2002); Gay v. Department
of the Navy, EEOC Appeal No. 07A20089 (October 09, 2007).
On appeal, the agency also presented arguments on the merits of the
case, asserting, among other things, that AJ disregarded settled law
by awarding compensatory damages and excessive attorney's fees and
costs to complainant, who only partially prevailed on one claim of
discrimination. However, because the agency's failure to timely file
its appeal constitutes a failure to take action during the 40-day period
set forth at 29 C.F.R. � 1614.110(a), the agency is not permitted to
challenge any aspect of the AJ's decisions. McCue, supra. Therefore,
the Commission will make no determination as to the appropriateness of the
finding of discrimination or of the amount awarded in compensatory damages
or attorney's fees. Accordingly, the agency's appeal is hereby dismissed.
The Commission directs the agency to provide relief consistent with the
AJ's decision, as stated in the Order below.
ORDER
The agency is ordered to take the following remedial action:
1. The agency shall examine its leave records and solicit such
additional information from complainant regarding leave usage as is
necessary to determine the amount of sick and/or annual leave used as a
result of the discrimination. The agency shall thereafter restore that
amount of sick and/or leave to complainant. The agency shall complete
these actions within sixty (60) calendar days.
2. Within 60 calendar days after this decision becomes final,
the agency shall issue a check to complainant for $50,000.00 in payment
for non-pecuniary compensatory damages and for $6,944.00 in pecuniary
compensatory damages.
3. Within 60 calendar days after this decision becomes final, the
agency shall issue a check to complainant for $45,517.50 in payment for
attorney's fees and for $786.39 in payment for costs.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Dallas Region facility copies of
the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
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
___9/10/07_______________
Date
1 We note that the AJ appropriately mailed her decision to both OCR and
the agency's designated representative.
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0720070050
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0720070050