05A20642_r
08-28-2002
Aleace Rabb, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Aleace Rabb v. Department of the Treasury
05A20642
August 28, 2002
.
Aleace Rabb,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Request No. 05A20642
Appeal No. 01A21315
Agency No. 02-3007
INTRODUCTION
On April 9, 2002, the Department of the Treasury timely initiated a
request to the Equal Employment Opportunity Commission (the Commission)
to reconsider the decision in Aleace Rabb v. Department of the Treasury,
EEOC Appeal No. 01A21315 (March 14, 2002). EEOC regulations provide
that the Commissioners may, in their discretion, reconsider any previous
Commission decision. 29 C.F.R. � 1614.405(b). The party requesting
reconsideration must submit written argument or evidence which tends
to establish one or more of the following two criteria: the appellate
decision involved a clearly erroneous interpretation of material fact
or law; or the decision will have a substantial impact on the policies,
practices or operations of the agency. Id.
Complainant, a GS-342-11 Lead Support Service Specialist, is employed at
the Internal Revenue Service's Agency Wide Shared Services in Detroit,
Michigan. On July 3, 2001, complainant initiated EEO counseling regarding
her claim of discrimination. After informal efforts to resolve her
complaint proved unsuccessful, complainant filed a formal complaint on
October 11, 2001. Complainant alleged that the agency subjected her to
discrimination on the bases of race, color, and in reprisal for prior
protected activity, when the agency assigned an inexperienced employee
as the contact person to oversee her project.
The agency dismissed complainant's complaint on the grounds that it
was untimely filed. The agency determined that complainant received
notice of her right to file a formal complaint on September 25, 2001,
and that the complaint was filed on October 11, 2001, one day beyond
the fifteen-day limitation period for filing a formal complaint.
In the previous decision the Commission reversed the agency's dismissal of
complainant's complaint. Specifically, the Commission determined that
there was insufficient evidence in the appeal record to establish when
complainant received the Notice of the Right to File her formal complaint.
In its request for reconsideration, the agency argues that complainant
received the notice on September 25, 2001. The agency acknowledges
that it failed to include the certified acknowledgment of complainant's
Notice of Right to File in the appeal record but argues that in her
formal complaint, complainant attested that she received the Notice of
Right to File on September 25, 2001. Further, the agency reiterates that
it asked complainant to provide an explanation for her delayed filing.
In a letter dated November 4, 2001, complainant offered several reasons
and also stated that she believed the fifteen days were business days,
rather than calendar days. Therefore, the agency argues, it sufficiently
established that the complaint was untimely filed.
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the request
fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the
decision of the Commission to deny the agency's request.
A review of the record on appeal reveals that in her formal complaint,
complainant attested that she received the Notice of Right to File on
September 25, 2001, and the record reflects that her formal complaint was
filed one day beyond the fifteen-day time limit. Moreover, the appeal
record contains a copy of the November 4, 2001 letter from complainant
wherein she acknowledges that there were �mix-ups with the dates� and that
�deadlines [were] thrown off.� Complainant further contends, however,
that she was unable to meet the fifteen-day time limit because of the
terrorist events on September 11, 2001, the ensuing anthrax scare in
October 2001,<1> and a homicide at her office building. The Commission
determines that this combination of circumstances is sufficient
to warrant an extension of the applicable time limit. Consequently,
we find that the Commission's previous decision properly found that the
formal complaint was timely filed. Therefore, we find that the agency's
request fails to meet the requisite criteria for reconsideration,
and the decision in EEOC Appeal No. 01A21315 remains the Commission's
final decision. There is no further right of administrative appeal on
the decision of the Commission on this request for reconsideration.
ORDER (E0900)
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 (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.
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
August 28, 2002
__________________
Date
1Complainant specifically alluded to an
anthrax scare �that we had here at the Detroit Computing Center.�