01980895
10-08-1998
Ora L. Batiste, Appellant, v. William S. Cohen, Secretary, Department of Defense, (DOD Elementary & Secondary Schools), Agency.
Ora L. Batiste, )
Appellant, )
)
v. ) Appeal No. 01980895
) Agency No. 97EKYKX005
William S. Cohen, )
Secretary, )
Department of Defense, )
(DOD Elementary & )
Secondary Schools), )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning 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., and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq. The final agency decision was
received by appellant on October 27, 1997. The appeal was postmarked
November 3, 1997. Accordingly, the appeal is accepted as timely (see 29
C.F.R. �1614.402(a)), in accordance with EEOC Order No. 960, as amended.
On April 24, 1997, appellant initiated contact with an EEO Counselor.
Informal efforts to resolve appellant's concerns were unsuccessful. On
August 25, 1997, appellant received a Notice of Final Interview, informing
her that she had fifteen days from the date of its receipt in which to
file a timely complaint.
On September 11, 1997, appellant filed a formal complaint, alleging that
she was the victim of unlawful employment discrimination on the bases
of sex and disability.
On September 29, 1997, the agency issued a final decision, dismissing
appellant's complaint on the grounds that it was untimely filed.
Specifically, the agency found that on August 20, 1997, an agency EEO
Counselor sent appellant a Notice of Final Interview, apprising her that
she had fifteen days from the date of its receipt in which to timely
file a formal complaint. The agency further found that appellant
acknowledged receipt of the Notice of Final Interview on August 25,
1997; and that appellant's formal complaint was postmarked September
11, 1997. The agency concluded that appellant's complaint was filed
more than fifteen days after her receipt of the Notice, on August 25,
1997, and was therefore untimely.
On appeal, appellant argues that on August 26, 1997, she telephoned an
EEO Counselor's office in Pensacola, Florida, and was told by an agency
Secretary that the EEO Counselor was on another line and that she would
return appellant's call. Appellant states that when the EEO Counselor
returned her telephone call on August 28, 1997, appellant informed the EEO
Counselor that the package containing the Notice of Final Interview was
incomplete; that the formal complaint form was missing from the package;
and that her husband had unsuccessfully attempted to obtain a copy of the
complaint form. Appellant further states that the EEO Counselor mailed
a complaint form to her, and that she received it on August 29, 1997.
Appellant argues that the EEO Counselor "assured [her] that the delay
of the form would not be counted against the 15 days because she forgot
to attach the form to the report."
In response, the agency argues that appellant's complaint was properly
dismissed for the reasons set forth in its final decision.
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 complaint required by 29 C.F.R. �1614.105(d), (e), or (f).
EEOC Regulation 29 C.F.R. �1614.107(b) provides 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).
In the present case, appellant contends that after informing an EEO
Counselor that a formal complaint form had not been included with
the Notice of Final Interview, an agency EEO Counselor in Pensacola,
Florida, sent a copy of a complaint form to appellant and "assured [her]
that the delay of the form would not be counted against the fifteen days
. . ." In view of appellant's contention, we find that a supplemental
investigation is necessary prior to a determination of the timeliness
of appellant's complaint. Accordingly, the agency's decision to dismiss
appellant's complaint is VACATED. Appellant's complaint is REMANDED to
the agency for further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
1. The agency shall supplement the record with evidence regarding
whether appellant was informed that the fifteen-day limitation period
for filing a timely complaint would be extended, pending appellant's
receipt of an EEO complaint form, which evidence should include, but
is not limited to, an affidavit from the EEO Counselor in Pensacola,
Florida, whom appellant identified as the party who informed her that
the limitation period would be extended.
After completion of the supplemental investigation, the agency shall issue
a new final decision or notify appellant that the agency is processing
her complaint. The supplemental investigation and issuance of the final
decision or notice of processing must be completed withing thirty (30)
calendar days of the date this decision becomes final. A copy of the
new final agency decision and/or a copy of the notice of processing must
be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in
some jurisdictions have interpreted the Civil Rights Act of 1991 in a
manner suggesting that a civil action must be filed WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision. To ensure
that your civil action is considered timely, you are advised to file
it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive
this decision or to consult an attorney concerning the applicable time
period in the jurisdiction in which your action would be filed. 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 (Z1092)
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:
Oct. 8, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations