Marlene E. Dawkins, Complainant,v.Janet Reno, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionJan 12, 2000
01990754 (E.E.O.C. Jan. 12, 2000)

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).