0120103474
06-29-2012
Kathy N. Hodges, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Commissary Agency), Agency.
Kathy N. Hodges,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Appeal No. 0120103474
Agency No. DECA-000722-009
DECISION
Complainant filed an appeal with this Commission from the Agency's decision concerning 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. For the following reasons, we REMAND the complaint to the Agency for further processing.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a Storeworker at the Agency's facility in San Diego, California. In September 2008, Complainant sought EEO counseling, and in March 2009, she received notice from the EEO Counselor of her right to file a formal complaint. On or about March 26, 2009, she submitted an undated complaint form (DeCA Form 55-1, Oct. 2003) alleging that the Agency harassed her on the bases of race (African-American) and sex (female). An attachment to the complaint referenced an incident that occurred in January 2009.
The EEO Counselor issued a letter dismissing the complaint on the grounds that the matter had not been brought to his attention and was not like or related to the matters that she had brought to his attention. In violation of the Commission's regulations, the letter did not provide Complainant with notice of her right to appeal the dismissal. See 29 C.F.R. � 1614.110(b). However, the letter did invite her to seek counseling concerning the incident referenced in the formal complaint.
The complaint file submitted by the Agency is incomplete. Consequently, we are unable to ascertain exactly what transpired after March 2009, but Complainant indicates she received a letter dated April 1, 2010, dismissing her case for a procedural violation. That letter is not in the file, nor is there an EEO Counselor's report. There is an email message from the EEO Counselor suggesting that Complainant may have filed a second formal complaint but that he "lost track" of it because it was not assigned to him. For these reasons, we VACATE the decision dismissing the complaint and REMAND the matter for processing consistent with the Order below.
ORDER
The Agency is ordered to notify Complainant of the opportunity to meet with an EEO Counselor. The EEO Counselor shall complete EEO counseling within thirty (30) calendar days. At the end of the 30-day period, the EEO Counselor shall issue Complainant a notice of her right to file a discrimination complaint in accordance with 29 C.F.R. � 1614.105(d).
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
June 29, 2012
__________________
Date
2
0120103474
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013