01982217
03-19-1999
____________________, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
______________ v. Department of the Army
01982217
March 19, 1999
____________________, )
Appellant, )
)
v. ) Appeal No. 01982217
) Agency No. BEFLPI9712H0480
Louis Caldera, )
Secretary, )
Department of the Army, )
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. The final agency decision was issued on December
18, 1997. The appeal was postmarked January 22, 1998. Accordingly,
the appeal is considered timely<1> (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
The record reflects that appellant pursued the EEO complaint process
(BEFLF9708G0320). Informal efforts to resolve her concerns were
unsuccessful. On October 27, 1997, the agency issued appellant a
Notice of Right to File Discrimination Complaint. Therein, appellant
was informed that mediation of the informal complaint was unsuccessful
because appellant refused to cooperate by not making herself available
during the informal complaint counseling process; and because appellant's
allegations include a separate agency command (the Water Experiment
Station), the EEO official was not authorized to conduct mediation.
On November 7, 1997, appellant pursued the EEO complaint process on
the matter that is the subject of the instant appeal. Specifically,
appellant initiated contact with an EEO Counselor on the issue of
the agency's purported denial of an offer of mediation in Complaint
No. BEFLF09708G0320, discussed above.
The record indicates that on or about November 10, 1997, appellant filed
a formal complaint on BEFLF90708G0320.
On December 18, 1997, the agency issued a final decision in the
instant case. Therein, the agency identified the matter that was
the subject of the final decision as the "informal equal opportunity
complaint," initiated by appellant EEO Counselor contact of November
7, 1997. The agency noted that appellant underwent EEO counseling on
the issue of the purported denial of an offer of mediation in Complaint
No. BEFLF09708G0320. The agency dismissed appellant's informal complaint
for failure to state a claim and on the alternative grounds that it
addresses the same matter raised in a previously filed EEO complaint.
On appeal, appellant argues that her informal complaint was improperly
dismissed and that the agency obfuscated the true nature of her complaint.
Appellant further argues that her complaint reflects a continuing pattern
of discrimination.
EEOC Regulations provide that an agency is required to provide EEO
counseling and an opportunity to file a formal complaint to individuals
who believe that they have been discriminated against. EEOC Regulation
29 C.F.R. �1614.105(a) and (d). Further, the Commission has held that an
agency acts prematurely in dismissing a complainant's informal complaint
prior to the complainant being given the opportunity to file a formal
complaint. See Porter v. USPS, EEOC Request No. 05910237 (May 9, 1991).
In this case, the record reflects that appellant was never provided
with the chance to file a formal complaint. We therefore find that
the agency's decision to dismiss appellant's informal complaint was
improper and is REVERSED. This matter is REMANDED to the agency for
further processing in accordance with the ORDER below. Upon remand,
appellant should be given the opportunity to complete EEO counseling and,
thereafter, to file a formal complaint.
ORDER
Within thirty (30) calendar days of the date that this decision becomes
final, appellant shall be notified, in writing, that she may continue
EEO counseling relative to her informal complaint of November 7, 1997.
In the written notification, appellant shall be given the name of
an appropriate agency official or counselor to contact regarding the
counseling. Following the completion of counseling, appellant shall be
issued a Notice of Final Interview, in accordance with our regulations,
which advises her of her right to file a formal EEO complaint.
A copy of the written notification to appellant regarding EEO counseling
and the Notice of Final Interview shall be sent to the Compliance Officer
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:
March 19, 1999
____________________________
DATE Ronnie Blumenthal, Director
1 The dismissal of a complaint or a portion of a complaint may be
appealed to the Commission within thirty (30) calendar days of the date of
the complainant's receipt of the dismissal or final decision. See 29
C.F.R. �1614.402(a). Because the agency failed on appeal to supply a copy
of the certified mail receipt or any other material capable of establishing
that date, the Commission presumes that the appeal was filed within thirty
(30) calendar days of the date of appellant's receipt of the final decision.