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.