Laura Cook, Complainant,v.Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionAug 18, 2009
0120091964 (E.E.O.C. Aug. 18, 2009)

0120091964

08-18-2009

Laura Cook, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.


Laura Cook,

Complainant,

v.

Eric H. Holder, Jr.,

Attorney General,

Department of Justice,

Agency.

Appeal No. 0120091964

Agency No. BOP-2009-0122

DECISION

Complainant filed a timely appeal with this Commission from the agency's

final decision dated March 6, 2009, 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.

On November 17, 2008, complainant initiated EEO contact alleging that the

agency subjected her to harassment on the basis of sex (female) when, on

October 24, 2008, her supervisor (S1) accused her of attracting inmates

and sought to give complainant a Fully Successful on her performance

evaluation; on November 12, 2008, S1 attempted to intimidate her

during a staff meeting; S1 took no action after she informed him that

an inmate threatened her in July 2008; and management took no action

after complainant reported sexual harassment to the agency chaplain in

November 2008. On December 19, 2008, an EEO Counselor (EC1) issued

complainant a Notice of Right to File (NORF) informing her that she

had 15 days after receipt of the NORF to file a formal EEO complaint.

The December 19, 2008 NORF contains the signature of both EC1 and

complainant. Complainant filed a formal EEO complaint dated December 30,

2008 reiterating the above claim.

In its March 6 final decision, the agency dismissed complainant's

complaint pursuant to 29 C.F.R. � 1614.107(a)(2) for an untimely formal

complaint. Specifically, the agency stated that the formal complaint was

filed on January 6, 2009, which is beyond the 15-day statutory time-frame,

and hence is untimely. The instant appeal from complainant followed.

On appeal, complainant provided the explanation that she asked EC1 if "15

days" was measured by calendar days or business days, and he was unsure

but thought "business days." Complainant added that her complaint is

timely if calculated in terms of business days. EC1 acknowledged that

he was unsure which manner to calculate, but added that he referred

complainant to another person for clarification.

We find that complainant's complaint was improperly dismissed pursuant

to 29 C.F.R. � 1614.107(a)(2). The regulation set forth at 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 29 C.F.R. � 1614.106, which, in turn, requires the filing of a formal

complaint within fifteen (15) days of receiving the notice of the right

to do so. All � 1614 time limits are in terms of calendar days unless

otherwise noted. Moreover, the time limits are subject to waiver,

estoppel, and equitable tolling. 29 C.F.R. � 1614.604(c).

Where, as here, there is an issue of timeliness, "[a]n agency always bears

the burden of obtaining sufficient information to support a reasoned

determination as to timeliness." Guy, v. Department of Energy, EEOC

Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of

Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition, in

Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14,

1993), the Commission stated that "the agency has the burden of providing

evidence and/or proof to support its final decisions." See also Gens

v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992).

Complainant filed her formal complaint on January 6, 2009, which is within

15 business days of the date she received the NORF (December 18, 2008)

and the time-frame she said she thought applied. Although 15 calendar

days is the statutory time-frame, the EEO Counselor acknowledged that

complainant asked him and he also was unsure of the manner of measurement.

It is not reasonable to hold complainant accountable for information

which the Counselor could not provide. Based on the above, we find the

time limit subject to tolling and that the agency did not satisfy its

burden for dismissal.

The agency's final decision dismissing complainant's complaint on

the grounds that it was untimely filed is REVERSED. The complaint is

REMANDED to the agency for further processing in accordance with this

decision and the ORDER below.

ORDER (E0408)

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 (K1208)

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 77960, Washington,

DC 20013. 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 (M1208)

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 77960,

Washington, DC 20013. 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 (R0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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 18, 2009

__________________

Date

2

0120091964

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

5

0120091964