Margie M. Lockamy, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionMar 1, 2000
01a00500 (E.E.O.C. Mar. 1, 2000)

01a00500

03-01-2000

Margie M. Lockamy, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Margie M. Lockamy, )

Complainant, )

)

v. ) Appeal No. 01A00500

) Agency No. 9962740071

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

____________________________________)

DECISION

On October 16, 1999, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) received by her on

September 20, 1999, pertaining to her complaint of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. � 2000e et seq.<1> The Commission accepts the

current appeal in accordance with EEOC Order No. 960.001.

ISSUE PRESENTED

The issue presented herein, is whether the agency properly dismissed

the present complaint for failure to file the formal complaint within

fifteen days of receiving the notice to file a formal complaint.

BACKGROUND

For the relevant period in question, complainant was employed by

the Department of the Navy, as a Procurement Technician, GS-1106-05.

Complainant states that on April 22, 1999, she arrived at work to find

that her work area was covered with a clear oily substance. And on May

11, 1999, a co-worker imposed her religious beliefs upon complainant,

criticized complainant's religious beliefs and accused her of being

possessed with evil sprits and lying.

Believing that she was the victim of discrimination, on April 26,

1999, complainant initiated contact with an EEO Counselor. During the

counseling period, complainant recited the above incidents to the EEO

counselor.

Counseling failed, and on July 12, 1999, complainant filed a formal

complaint of discrimination claiming that she was the victim of unlawful

employment discrimination on the bases of her religion (unspecified)

and reprisal (prior EEO activity). The complaint was comprised of the

matters for which complainant underwent EEO counseling, discussed above.

On September 13, 1999, the agency issued a final decision dismissing the

present complaint for failure to file the formal complaint within fifteen

days of receiving the notice to file a formal complaint. Specifically,

the agency found that complainant received the right to file a formal

complaint on June 24, 1999, and she hand delivered the formal complaint

on July 12, 1999, therefore, in excess of the fifteen day limitations

period.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a

written complaint with an appropriate agency official within fifteen

(15) calendar days after the date of receipt of the notice of the right

to file a formal complaint.

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

cited as 29 C.F.R. � 1614.107(a)(2)) provides that the agency shall

dismiss a complaint that fails to comply with the applicable time limits

contained in �� 1614.105, 1614.106, and 1614.204(c), unless the agency

extends the time limits in accordance with � 1614.604(c).

However, 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). In this case, the agency has failed to

supply evidence as to when complainant actually received the notice to

file a formal complaint. We note, that the agency has submitted a receipt

documenting that they mailed the notice by certified, return receipt

mail, but the record does not include the return receipt indicating when

complainant received the notice. Therefore, since the agency has failed

to provide proof and/ or evidence to support its decision, the Commission

finds that the agency improperly dismissed the current complaint.

CONCLUSION

For the reasons set forth herein, the Commission hereby REVERSES the

decision of the agency to dismiss to current complainant for failure to

file the formal complaint within fifteen days of receiving the notice

to file a formal complaint. The instant complaint is hereby REMANDED

to the agency for further processing in accordance with this decision

and applicable regulations.

ORDER (E1199)

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 an

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 (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION

(R1199)

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:

March 1, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant1On 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.