01a5548301a55581
06-13-2006
Glenda K. Ashford, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Glenda K. Ashford,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal Nos. 01A55483 & 01A55581
Agency No. ARCEJACK04NOV08839[1]
Hearing No. 110-2005-00273X-PD[2]
DECISION
The complainant filed timely appeals with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final agency action dated July 5,
2005, and a final agency decision (FAD) dated July 20, 2005, dismissing her
claims/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.
The complainant claimed that she was discriminated against based on her
race (black), sex (female), and in reprisal for prior protected EEO
activity when:
1. the agency's South Atlantic Division did not establish a
permanent GS-14 EPA Liaison position in approximately May 2004.
2. she was not selected for the position of Regulatory Program
Manager, GS-14, announcement number SCGT04799102 on or about
June 18, 2004, and
3. she was not selected for the position of Military Construction
Manager, GS-14, announcement number SCGT04717621 on or about
June 18, 2004.
Given surrounding documentation in the record, we credit the complainant's
contention that she contacted an EEO counselor regarding claim 1 in May
2004. Thereafter, she submitted an "amended complaint" dated May 25, 2004
on claim 1 to the EEOC district office which was handling a pending
complaint she had.
The complainant contacted an EEO counselor regarding claims 2 and 3 by June
23, 2004. The counselor advised the complainant to amend a complaint that
she had pending before the EEOC AJ to include claims 2 and 3, and advised
her that if the AJ did not accept the amendment, she would process it as a
new complaint. By motion to the appropriate EEOC district office dated
July 7, 2004, the complainant requested that claims 2 and 3 be included as
an amended complaint.
In his discretion, the AJ declined to allow the complaint pending before
him to be amended, and orally notified the complainant of this in a pre-
hearing conference on September 22, 2004. During a hearing on October 12,
2004, the AJ and parties discussed this matter. The AJ recalled that he
said the complainant would have to initiate a new complaint on her claims.
Thereafter, there were interactions regarding claims 1, 2 and 3 between the
complainant and the agency's EEO office, albeit the amount of interaction
is disputed. Believing that things were progressing too slowly, on
February 28, 2005, the complainant asked the agency to issue her a notice
of right to file an EEO complaint. The agency did so on April 21, 2005,
and the complainant received it on April 25, 2005. It recounted claims 1,
2 and 3, and advised the complainant that she had a right to file a
complaint within 15 calendar days of receipt of the notice.
Meanwhile, by letter dated April 19, 2005, the complainant made a request
for a hearing on claims 1, 2 and 3 to the relevant EEOC district office.
She argued that more than 180 days had elapsed since the AJ remanded the
claims.
On June 14, 2005, the AJ issued an order of dismissal on the grounds that
the complainant never filed a complaint concerning the matters for which
she sought a hearing.[3] The agency then issued a final action dated July
5, 2005, which the complainant appeals.
The complainant did not file a complaint in response to the notice of right
to file a complaint until July 13, 2005. The agency then issued a FAD
dated July 20, 2005 dismissing the complaint for failure to timely file the
complaint. It also dismissed claim 3 for failure to state a claim. The
complainant appeals this FAD.
Upon review, the Commission finds that complainant's complaint was properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), due to the untimely
filing of the formal complaint. The record discloses that the complainant
received the notice of right to file a formal complaint on April 25, 2005.
Although the notice indicated that complainant had to file a formal
complaint within fifteen (15) calendar days of its receipt, the complainant
did not file her formal complaint until July 13, 2005, which is beyond the
limitation period.
The complainant's argument on appeal that her complaint should be deemed as
having been filed earlier is not persuasive. The AJ did not view the
complainant's May 2004 and July 2004 submissions to be complaints, and
recalled in an October 2004 hearing that he told the complainant that she
would have to initiate a new complaint on her claims. In light of the AJ's
declination to allow claims 1, 2 and 3 to be included in the hearing
process as amended complaints, we decline to view the complainant's written
interactions with the EEO office as constituting a formal complaint at
various points on claims 1, 2 and 3, especially in light of the agency's
issuance of a notice of right to file a complaint which the complainant
failed to timely reply. Accordingly, the agency's final decision
dismissing the complainant's complaint is affirmed.[4]
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 (S0900)
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. 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
June 13, 2006
__________________
Date
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[1] The agency number is associated with Appeal No. 01A55483. There is no
agency number associated with Appeal No. 01A55581.
[2] The hearing number is only associated with Appeal No. 01A55581.
[3] Because there is no evidence that the parties made the AJ aware that
the notice of right to file had been issued, this was not a reference to
the complainant not filing a complaint in response to the notice.
[4] Because we are affirming the dismissal of the complaint for failure to
timely file an EEO complaint, we need not rule on whether claim 3 fails to
state a claim.