Mari I. Sanchez, Complainant,v.Pete Geren, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionSep 29, 2009
0120092615 (E.E.O.C. Sep. 29, 2009)

0120092615

09-29-2009

Mari I. Sanchez, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.


Mari I. Sanchez,

Complainant,

v.

Pete Geren,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120092615

Agency No. ARBLISS09MAR01231

DECISION

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

decision dated May 7, 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., Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

In her complaint, complainant alleged that she was subjected to

discrimination on the bases of national origin (Hispanic), disability

(Depression), and age (DOB: November 7, 1961) when she received an

official separation letter by mail, dated January 26, 2009, informing

her that she was no longer working at the Youth Services Center effective

January 9, 2009.

The agency dismissed the complaint pursuant to 29 C.F.R. �1614.107(a)(2)

for untimely EEO contact. The agency noted that discriminatory action

allegedly occurred on January 9, 2009, and complainant's initial EEO

contact on March 12, 2009, was beyond the 45-day regulatory limitation

period. Complainant appealed indicating that she did not know she was

terminated until she received the agency's official termination letter,

which was dated January 26, 2009, and received subsequent to that

date. Further, she stated that she stopped by the agency's EEO office

on March 6, 2009, but was told that the first appointment was not until

March 12, 2009.

EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the agency shall

dismiss a complaint or a portion of 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).

EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved

person must initiate contact with an EEO Counselor within 45 days of

the date of the matter alleged to be discriminatory or, in the case of

a personnel action, within 45 days of the effective date of the action.

EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the

Commission to extend the time limit if the appellant can establish that

appellant was not aware of the time limit, that appellant did not know

and reasonably should not have known that the discriminatory matter

or personnel action occurred, that despite due diligence appellant

was prevented by circumstances beyond her control from contacting the

EEO Counselor within the time limit, or for other reasons considered

sufficient by the agency or Commission.

Complainant indicated that she walked into the agency's EEO office on

March 6, 2009. The EEO Counselor's report also notes that complainant

entered the EEO office on March 6, 2009, but did not get an appointment

until March 12, 2009. Further, the EEO Counselor's report states that

complainant informed the EEO Counselor that she was not aware that a final

decision had been made regarding her termination until she received that

agency's letter dated January 26, 2009, which she asserts she received in

mid-February 2009. Complainant told the EEO Counselor that she believed

her termination was official at that point in February.

Based on the record on appeal, we are persuaded that complainant

was not fully aware that a final decision had been made by agency

management on her termination until she received the agency's January

26, 2009 letter. The record supports complainant's assertion that

she first contacted the EEO office for counseling on March 6, 2009.

Complainant's contact was within the requisite 45-day period. As such,

we find that the agency's dismissal was not appropriate.

Therefore, we REVERSE the agency's final decision and REMAND the complaint

for further processing in accordance with 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

September 29, 2009

__________________

Date

2

0120092615

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

4

0120092615