0120083592
12-07-2011
Eileen M. Wynder, Complainant, v. Robert C. Tapella, Public Printer, United States Government Printing Office, Agency.
Eileen M. Wynder,
Complainant,
v.
Robert C. Tapella,
Public Printer,
United States Government Printing Office,
Agency.
Appeal No. 0120083592
Agency No. 0827
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated July 24, 2008, dismissing 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. Upon review, the
Commission finds that Complainant's complaint was improperly dismissed.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Equal Employment Opportunity (EEO) Specialist in the Agency's EEO
Office located in Washington, DC.1 Complainant filed a formal complaint
alleging that the Agency subjected her to discrimination on the bases
of race (Black) and color (light skin) when: (1) she was not provided
adequate work space as her co-workers; (2) she was denied a promotion;
and (3) she was subjected to a hostile work environment when she was
assigned to an office with another staff person, charged AWOL after
returning from mobilization, and not assigned any meaningful work.
The record shows that Complainant received a notice on June 12,
2008, stating that she had fifteen days to file a formal complaint
of discrimination. Specifically, the notice stated that the formal
complaint “must be in writing, signed, and filed, in person or by mail,
within 15 CALENDAR DAYS AFTER RECEIPT OF THIS NOTICE… A complaint shall
be deemed timely if it is received or postmarked before the expiration
of the 15-day filing period.” Complainant date-stamped her complaint
around 7:00 p.m. on June 27, 2008, and placed it under one of the doors of
the locations authorized to receive discrimination complaints. June 27,
2008, was the deadline for filing the complaint.
The Agency dismissed the complaint on the basis that it was not mailed,
or filed in person, on or before the deadline of June 27, 2008. In the
alternative, the Agency dismissed the complaint for not describing
“even generally the actions(s) or practice(s) that form the basis of
your complaint as required by 29 C.F.R. § 1614.106(c).”
ANALYSIS AND FINDINGS
Complainant had until June 27, 2008, to file her complaint, and it is
undisputed that June 27, 2008, is the date she filed it. The fact that
the office was not “open” when Complainant filed the complaint does
not make her in person filing untimely. In addition, we reject the
Agency’s argument that the complaint should be dismissed for failing
to be sufficiently precise. The formal complaint alleges disparate
treatment, harassment, denial of promotion, and an AWOL charge, among
other things, and is consistent with the claims Complainant raised
during EEO counseling. We find that the formal complaint submitted by
Complainant on June 27, 2008, was timely filed and contained a sufficient
articulation of the issues to warrant further processing.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's
complaint is REVERSED and the complaint is REMANDED for further processing
consistent with the ORDER below.
ORDER (E0610)
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 (K0610)
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 (M0610)
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), at 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 (R0610)
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 (Z0610)
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
December 7, 2011
__________________
Date
1 Because of her position, and in order to avoid an actual or apparent
conflict of interest, the Agency obtained the services of independent
entities to conduct the EEO processing and issuance of the final decision.
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2
01-2008-3592
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013