01990809
01-18-2000
Monica R. Sias, Complainant, v. Davis J. Barram, Administrator, General Services Administration, Agency.
Monica R. Sias v. General Services Administration
01990809
January 18, 2000
Monica R. Sias, )
Complainant, )
)
v. ) Appeal No. 01990809
) Agency No. 98-NCR-WP-MRS-7
Davis J. Barram, )
Administrator, )
General Services Administration, )
Agency. )
____________________________________)
DECISION
On November 20, 1997, complainant contacted an EEO Counselor, alleging
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq., on behalf of a class
of African-American employees.<1> Complainant received her notice
of right to file a complaint of discrimination on February 17, 1998,
and subsequently filed a formal complaint postmarked on March 9, 1998
alleging that the class was subjected to discrimination on the basis of
race (African American) when:
None of the class members were selected for a GS-1170-13 Realty Specialist
position, Announcement No. 97991042;
The class members were not given awards at the same rate as Caucasian
employees; and
The class members were not given high-visibility, complex projects that
would enhance their promotional opportunities.
The complaint was sent to an EEOC Administrative Judge (AJ) for a
determination of whether the class should be certified for investigation
of the merits of its complaint. At this time complainant, the class
agent, obtained legal counsel.
In her denial of certification, dated September 28, 1998, the AJ found
that the complaint should be dismissed because complainant failed to file
her formal complaint within fifteen (15) days of receiving the notice
of right to file a complaint. In a final action dated October 2, 1998,
the agency concurred with the AJ's determination, except to add that any
possible individual complaint arising from the class complaint issues
also was untimely filed.
On November 5, 1998, complainant filed a timely appeal from the agency's
October 2, 1998 action. On appeal, complainant argues, through her
attorney, that the agency should not be allowed to dismiss her complaint
for failure to follow technical guidelines when the agency did not
provide adequate counseling to the class. Complainant explains that the
EEO Counselor only met with two members of the prospective class, and
never informed complainant of the requirements for class complaints.<2>
Complainant included affidavits from the other named class members,
all stating that they would not have joined the class if they had
been informed of the numerosity requirement for class complaints.
Complainant concedes, however, that she "is not quibbling that her
complaint was timely filed."
In response, the agency argues that even if complainant was improperly
counseled regarding class complaint requirements, such shortcomings
should not excuse complainant's untimely filing. The agency noted
that complainant filed her formal complaint twenty-two (22) days after
she received the notice of right to file, and that the notice informed
complainant of the fifteen-day time limit. The agency also asserts that
it informed complainant of class complaint requirements.
EEOC Regulation 29 C.F.R. �1614.204(c)(2) requires that a class
complaint of discrimination be filed within fifteen (15) days of the class
agent's receipt of the notice of right to file. EEOC Regulations also
provide that an 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). See 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified
and hereinafter cited as 29 C.F.R. �1614.107(a)(2)).
The record in this case indicates that complainant received a notice of
the right to file a formal discrimination complaint on February 17, 1998.
The notice informed complainant that she had fifteen days from the date
of receipt of the notice in which to file a formal complaint. The record
further reflects that complainant did not file a formal complaint within
fifteen days of her receipt of this notice but instead filed the formal
complaint on March 9, 1998.
Even if true, the Commission finds that the agency's failure to inform
the class members of the requirements for a class complaint does not
excuse complainant's failure to file a timely complaint. Cf. Irving
v . Department of Veteran's Affairs, 498 U.S. 89, 96 (1990) (finding
that equitable tolling did not apply where the complainant "fail[ed] to
exercise due diligence in preserving [her] legal rights." by failing to
file a timely civil action). Further, the agency never misrepresented
complainant's duty to file her formal complaint within 15 days of
receiving the notice. Accordingly, the class complaint was properly
dismissed pursuant to 29 C.F.R. �1614.107(a)(2).
To the extent that the agency's final action dismissed complainant's
individual complaint, EEOC Management Directive 110 (Nov. 9, 1999)
explains that "when the class complaint is dismissed at the certification
stage, the individual complaint may still proceed, unless the same
. . . basis for dismissal applies." MD-110 at 8-4. EEOC Regulation
29 C.F.R. � 1614.106(b) requires the filing of a written individual
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. Therefore, complainant's individual complaint
also was untimely filed.
CONCLUSION
Accordingly, the agency's dismissal is AFFIRMED.
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 (S1199)
You have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, 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 18, 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 requirements include that class complaints involve a class so
numerous that a consolidated complaint of the members of the class is
impracticable (numerosity), that there are questions of fact common to
the class (commonality), and that the claims of the agent are typical
of the claims of the class (typicality). See 29 C.F.R. �1614.204(a)(2).