0120152835
04-26-2016
Melina K.,1 Complainant, v. Dr. Rajiv Shah, Administrator, Agency for International Development, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Melina K.,1
Complainant,
v.
Dr. Rajiv Shah,
Administrator,
Agency for International Development,
Agency.
Appeal No. 0120152835
Agency No. OCRD-021-15-1
DISMISSAL
Complainant filed an appeal with this Commission regarding her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
At the time of events giving rise to this complaint, Complainant worked as an Administrative Officer at the Agency's facility in Washington, D.C. On February 23, 2015, Complainant contacted the EEO Counselor alleging discrimination. When the matter could not be resolved informally, on June 5, 2015, the Agency issued Complainant a Notice of Right to File a Formal Complaint (Notice).
On September 2, 2015, Complainant filed a document which was docketed as the instant appeal. In her "appeal," Complainant asked that the Commission investigate her claim of discrimination. She included a copy of her formal complaint alleging that the Agency subjected her to harassment and denial of reasonable accommodation on the basis of disability. On September 29, 2015, Complainant submitted a brief in support of her request. In that brief, Complainant indicated that on September 9, 2015, she was terminated from her position with the Agency.
In response to the appeal, the Agency stated that Complainant had not filed her formal complaint within the 15 calendar day time frame listed in 29 C.F.R. � 1614.106(b). The Agency noted that Complainant has not filed her formal complaint with the Agency. As such, the Agency stated that appeal regarding the complaint was premature and should be dismissed by the Commission.
Upon review of the record, we find that Complainant has improperly tried to file her formal complaint with the Commission. We note that the Notice clearly stated that Complainant must file her formal complaint with the Agency. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 2-19 (Aug. 5, 2015). Further, in her appeal brief, Complainant has alleged a new claim of discrimination when, on September 9, 2015, she was terminated from her position. Again, Complainant must raise such claims with the Agency's EEO Counselor first. 29 C.F.R. � 1614.105(a) (stating that aggrieved persons who believe they have been discriminated against must consult a Counselor prior to filing a complaint in order to try to informally resolve the matter); see also EEO MD-110 at 2-1.
As such, we find that the instant matter is improperly raised with the Commission. Therefore, the Complainant's appeal is DISMISSED. We remand the matter to the Agency for further processing in accordance with the ORDER below.
ORDER
Within 30 calendar days of the date this decision becomes final, the Agency shall process the remanded formal complaint in accordance with 29 C.F.R. � 1614.106. If the Agency dismisses the complaint pursuant to 29 C.F.R. � 1614.107, the Agency shall issue Complainant a final decision. See EEO MD-110 at 5-34. If the Agency accepts the matter for further processing in accordance with 29 C.F.R. � 1614.108, the Agency shall issue its letter of acknowledgement.
A copy of the Agency's letter of acknowledgment or its final decision to Complainant must be sent to the Compliance Officer as referenced below.
Within 15 calendar days of the date this decision becomes final, the Agency shall process Complainant's claim of discrimination based on her termination pursuant to 29 C.F.R. � 1614.105. The Agency shall process Complainant's pre-complaint contact within 15 calendar days of the date of this decision. For purposes of timeliness, the Agency shall consider the date of contact to be September 28, 2015. If within 30 calendar days the matter is not resolved informally and the parties have not agreed to an extension, the Agency shall provide Complainant a notice of right to file a formal complaint.
A copy of the Agency's EEO counseling report and notice of right to file a formal complaint (unless the matter has been resolved) must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 (M0815)
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), at Chap. 9 � VII.B (Aug. 5, 2015). 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 (R0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
April 26, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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