0120083871
02-05-2009
Renita Blake,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120083871
Agency No. APHIS200600090
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 25, 2008, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In her
complaint, complainant alleged that she was subjected to discrimination on
the bases of race (Black), color (Black) and reprisal for prior protected
EEO activity when:
1. On August 16, 2005, complainant learned that she was not selected for
the position of Agreements Specialist, GS-9/11 announced under Vacancy
Announcement Numbers 2487-2005-0516 and 687-2005-0470 and
2. Complainant did not receive a monetary award or quality step increase.
The agency dismissed the instant complaint as untimely in accordance
with EEOC Regulation 29 C.F.R. � 1614.107(a)(2). In its final decision,
the agency indicates that on October 27, 2005, complainant contacted an
EEO Counselor alleging that she had been subjected to discrimination as
referenced above. Complainant alleges on appeal, however, that she first
contacted an EEO Counselor regarding her concerns in a phone call to the
agency's EEO office on August 17, 2005. Complainant avers further that
after her call was unanswered on August 17, 2005, she again contacted
the agency by phone on August 22, 2005 and again received no answer or a
returned phone call from the agency. Complainant indicates that on August
29, 2005, she faxed a letter regarding her EEO concerns to the agency's
EEO office. The record contains a copy of complainant's August 29, 2005
correspondence to the agency as well as a copy of the fax transmittal
sheet indicating that the fax to the agency was sent successfully.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within forty-five
(45) days of the date of the matter alleged to be discriminatory or
in the case of a personnel action, within forty-five (45) days of the
effective date of the action. Here, the record indicates that the
alleged discriminatory event occurred August 16, 20051. The record
further discloses that complainant contacted the agency's EEO office by
letter dated August 29, 2005.
Where, as here, there is an issue of timeliness, "[a]n agency always bears
the burden of obtaining sufficient information to support a reasoned
determination as to timeliness." Guy, v. Department of Energy, EEOC
Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of
Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition, in
Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14,
1993), the Commission stated that "the agency has the burden of providing
evidence and/or proof to support its final decisions." See also Gens
v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992).
Upon review, we find that the agency's dismissal of complainant's
complaint based on untimely counselor contact was improper. The record
contains evidence indicating that complainant contacted an EEO Counselor
within the 45-day time period consistent with EEOC Regulations.
Accordingly, the agency's decision is reversed and remanded to the
agency for further processing in accordance with this decision and the
Order below.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 (M1208)
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), 9-18 (November 9, 1999). 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 5, 2009
__________________
Date
1 Although the agency indicates that complainant had concerns as early
as 2003 about the agency's distribution of monetary awards and/or
quality step increases, there is no specific date provided regarding
complainant's allegation.
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0120083871
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120083871