01990754
01-12-2000
Marlene E. Dawkins, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Marlene E. Dawkins v. Department of Justice
01990754
January 12, 2000
Marlene E. Dawkins, )
Complainant, )
)
v. ) Appeal No. 01990754
) Agency No. P-98-9362
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
____________________________________)
DECISION
On November 5, 1998, complainant filed an appeal with this Commission
from a final agency decision (FAD) dated September 23, 1998, 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 appeal is accepted as timely in accordance with
EEOC Order 960, as amended.<2>
The agency dismissed the complaint for failure to file a timely formal
complaint. Specifically, the agency found that complainant received a
notice of the right to file a complaint of discrimination on December
12, 1997, informing her of the fifteen-day limitation period to file a
formal complaint. Complainant then failed to file a formal complaint
until January 17, 1998, according to the agency. The agency also
explained that although complainant claims to have faxed a formal
complaint to the agency on November 14, 1997, the agency had no copy
of the alleged complaint, and did not have any record of any agency
official acknowledging receipt of the fax. The agency also found that
complainant failed to produce a facsimile confirmation notice, or a copy
of the complaint allegedly sent on November 14, 1997.
On appeal, complainant argues that she did not receive a Notice within
thirty days of initiating counseling as required by the regulations.
Over eighty days after initiating counseling, complainant contends
that she filed a formal complaint on November 14, 1997, via facsimile.
Complainant asserts that a particular EEO Official acknowledged receipt
of the documents in a telephone conversation. Complainant also contends
that she contacted the same official on December 26, 1997, regarding
her November 14, 1997 complaint. Complainant acknowledges that she
subsequently received a notice of right to file, but contends that after
returning the enclosed forms, she was informed that the agency gave her
out-dated forms, so she must submit another formal complaint in the
correct format.
The record includes the agency's acknowledgment of complainant's formal
complaint, stating that the complaint is deemed to have been filed on
the date it was postmarked, January 17, 1998. The acknowledgment also
informed complainant that she was sent the wrong form, and requested
that complainant submit a completed copy of the new complaint form.
The acknowledgment assured complainant, however, that her formal complaint
would be considered filed on January 17, 1998, despite the incorrect
format of the complaint. The record does not include a postmarked
envelope for the complaint, which complainant dated January 14, 1998.
The record also contains a copy of the Counselor's Report, stating that
complainant initially contacted an EEO Counselor on August 12, 1997.
The Counselor's Report also states that counseling was extended on
September 18, 1997, and that a copy of the extension was attached.
The record does not contain a signed extension.
The agency's chronological administrative file also includes a letter
from complainant dated November 14, 1997. In this letter, complainant
outlines the agency's failure to meet counseling time limits although
she never agreed to an extension of time. Complainant explains in
the letter that her claims involve hostile work environment and sexual
harassment based on sex and race, as discussed with her EEO Counselor.
The final paragraph of the letter states, in relevant part, "based on [the
agency's] inaction . . . I am going forward with this formal complaint
at this time." The November 14, 1997 letter, however, does not include a
facsimile date-stamp or confirmation. The record does include a statement
from the EEO Official with whom complainant claims to have spoken with
on two occasions. The official denies that she acknowledged receipt
of the November 14, 1997 letter, notes that the letter is not listed on
any agency records, and states that she was on leave December 26, 1997,
and therefore could not have spoken with complainant on that date.
A second letter from complainant, dated November 19, 1997, states
that the blank request for an extension was being returned unsigned.
The letter also notes that complainant previously filed a complaint via
fax on November 14, 1997.
The record contains the December 12, 1997 notice of right to file, signed
by complainant, and two separate formal complaint forms, January 14, 1998,
and February 3, 1998, respectively. Both allege discrimination on the
bases of race and sex. Complainant does not mention her November 14,
1997 letter in her January 14, 1998 complaint, but does reference the
letter on the February 3, 1998 complaint form.
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. EEOC Regulations also require an agency to 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). See 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified as 29 C.F.R. � 1614.107(a)(2)).
The regulations require an EEO Counselor to conduct a final interview
within 30 days of the date the aggrieved person contacted the agency's
EEO office to request counseling, unless the aggrieved person agrees
to a longer counseling period. If the incidents raised have not been
resolved, the Counselor also must inform the complainant, "no later
than the thirtieth day after she contacted a Counselor, of the right to
file a discrimination complaint." 64 Fed. Reg. 37,644, 37,656 (1999)
(to be codified as 29 C.F.R. �1614.105(d)).
In the present case, complainant contacted a counselor on August 12,
1997, but did not receive a notice of right to file within thirty days.
Complainant refused to agree to an extension. It is unclear, however,
whether complainant filed her formal complaint on November 14, 1997,
or on January 14, 1998. Clearly, the agency received the November
14, 1997 complaint, which it included in its chronologically ordered
administrative file. The November 14, 1997 complaint did not, however,
contain any proof of when it was sent or received. The agency rebutted
complainant's assertion that a certain EEO Official acknolwedged
receipt of the November 14, 1997 facsimile, and that the official
later discussed the complaint on December 26, 1997. Nonetheless,
neither the EEO Official's statement, nor any other evidence in the
record, explains how the agency obtained a copy of the November 14,
1997 complaint. Complainant failed to provide any further evidence
that the November 14, 1997 complaint was sent to the agency via fax,
or that a written copy of the complaint was later sent to the agency.
Therefore, the Commission is unable to determine whether complainant's
formal complaint was timely filed.
CONCLUSION
Accordingly, the agency's decision is VACATED, and the complaint is
REMANDED for further processing as provided below.
ORDER
The agency is ORDERED to perform the following:
Conduct a supplemental investigation to determine when the agency
received, and when complainant sent a copy of her complaint dated November
14, 1997. The agency must contact complainant to obtain an affidavit or
statement regarding the exact date on which she sent the November 14,
1997 complaint via facsimile. The agency also must ask complainant
whether a written copy of the complaint was subsequently sent to the
agency, and if so, when it was mailed or otherwise sent. The agency
shall request any facsimile machine confirmation or other available
proof that the documents were sent to the agency. The agency also must
obtain an affidavit or statement from the agency official who received
the November 14, 1997 complaint that is now in the record. The agency
must request information and any supporting documentation including
postmarked envelopes, return-receipt cards, or facsmilie confirmation
documentation concerning the date and manner in which the November 14,
1997 document was received by the agency. The completed supplemental
investigation must be included in the record.
Within forty-five days of the date this decision becomes final, the
agency shall issue a new final decision or notice of processing regarding
complainant's claims. The agency's decision must include a determination,
supported by evidence in the record, of whether complainant sent a
formal complaint prior to or within fifteen days of the December 12,
1997 notice of right to file a complaint.
The agency shall send a copy of the final decision or notice of processing
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:
January 12, 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 Assistant
1On 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.
2The agency was unable to supply a copy of a certified mail return
receipt or any other material capable of establishing the date complainant
received the agency's dismissal. Accordingly, since the agency failed
to submit evidence of the date of receipt, the Commission presumes that
complainant's appeal was filed within thirty (30) days of receipt of the
agency's dismissal, final action or decision. See, 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified and hereinafter cited as 29 C.F.R. �
1614.402).