01a52234_r
07-12-2006
Venette L. Marriner, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, (National Guard Bureau) Agency.
Venette L. Marriner v. Department of the Army
01A52234
July 12, 2006
.
Venette L. Marriner,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
(National Guard Bureau)
Agency.
Appeal No. 01A52234
Agency No. T-0045-CA-A-01-05-O
DECISION
Complainant filed a formal EEO complaint dated May 28, 2003, wherein she
claimed that she had been discriminated against on the bases of her race
(White), sex (female), color (white), age (dob 6/15/52) and in reprisal.
Complainant apparently filed this complaint without receiving EEO
counseling. The agency attempted to provide counseling subsequent to
complainant filing the complaint dated May 28, 2003, but, according to
the EEO Counselor's report, complainant did not cooperate in the agency's
efforts to provide counseling. The agency subsequently issued a notice
of right to file a complaint which was received by complainant's attorney
on March 17, 2004. Complainant then filed a complaint dated March 21,
2004, in which she alleged discrimination on the basis of retaliation
apparently concerning alleged events occurring from July 1999 through,
at the latest, April 2002.
On November 18, 2004, the agency issued a final action dismissing
complainant's complaint on the grounds that complainant filed the
complaint in an untimely manner. The agency stated that complainant's
representative (an attorney) received a notice of final interview on
March 17, 2004, but that complainant's complaint was not received until
May 28, 2004, after the expiration of the 15-day filing period.
On appeal, complainant contends that her complaint was timely filed as
it was sent by certified mail on March 23, 2004, and received at the
agency's EEO Office on March 24, 2004. According to complainant, the
agency is erroneously referencing a complaint that she filed on May 28,
2003, as the untimely complaint. Complainant submits evidence indicating
that the complaint dated March 21, 2004, was delivered to the agency on
March 24, 2004.
As an initial matter we find that the instant appeal was timely filed on
December 17, 2004, within thirty days of when complainant's representative
(an attorney) received the final action.
Regarding the complaint dated March 21, 2004, we find that this is the
complaint the agency is apparently dismissing. We find that the complaint
dated March 21, 2004, was timely filed and was improperly dismissed.
Complainant's attorney received the notice of right to file a complaint
on March 17, 2004, and filed the complaint by, at the latest, March
24, 2004. The agency has not shown that it received the complaint at
a date later than March 24, 2004, or that the envelope containing the
complaint was postmarked at a date later than March 24, 2004. Therefore,
the Commission shall remand the complaint dated March 21, 2004, to the
agency for processing. We do not define the issues in the complaint
dated March 21, 2004, in this decision and we do not address whether
such issues were timely raised with an EEO Counselor.
We note that the May 28, 2003 complaint was improperly filed because
complainant did not seek counseling before filing that complaint. See 29
C.F.R. � 1614.105 and � 1614.107(a)(2). The May 28, 2003 complaint is
not at issue in this decision.
The agency's decision dismissing the complaint dated March 21, 2004,
is REVERSED and the complaint is REMANDED to the agency for further
processing pursuant to the Order herein.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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 (K0501)
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 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 (M0701)
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 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 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
(R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 12, 2006
__________________
Date