01976592
10-20-1998
Betty J. Olds, Appellant, v. John H. Dalton, Secretary, Department of the Navy, Agency.
Betty J. Olds, )
Appellant, )
) Appeal No. 01976592
v. ) Agency No. 96-00191-001
)
John H. Dalton, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
On August 30, 1997, appellant filed a timely appeal with this Commission
from a July 28, 1997 final agency decision, received by her on July
31, 1997. The final agency decision accepted two allegations of the
complaint for investigation and dismissed six allegations for failure
to contact an EEO Counselor in a timely manner.
As an initial matter, we note that on December 12, 1995, the agency issued
a final decision (FAD-1) dismissing the subject allegations for untimely
Counselor contact. In EEOC Appeal No. 01962101 (December 5, 1996),
the Commission concluded that the record was insufficient to determine
the timeliness of appellant's EEO Counselor contact. The Commission
noted that although appellant alleged in her complaint and on appeal
that she contacted EEO officials in June and September 1994, the agency
failed to address these contentions in FAD-1. The Commission further
noted that the agency failed to address appellant's claim that the
allegations were interrelated as a pattern of harassment and constituted a
continuing violation. Accordingly, the agency was ordered to conduct an
investigation on the issue of timeliness of EEO contact. Specifically,
the agency was directed to investigate which officials were contacted,
on what dates and what was discussed and to conduct an analysis of
appellant's allegation of a continuing violation.
On July 28, 1997, the agency issued a new final decision (FAD-2). The
agency framed the accepted allegations as whether appellant was
discriminated against when:
a. on the bases of race (White), sex (female) and age (August 18, 1946),
she did not receive her performance rating for the period ending January
31, 1995, until August 22, 1995;
3b. on the bases of sex, her request for continuation of pay, filed on
September 6, 1995, was denied.
The agency framed the dismissed allegations as whether appellant was
discriminated against when:
4a. on the bases of race and sex, she was denied the opportunity to
compete for the position of Employee Relations Specialist, GS-230-09 in
September 1989;
4b. on the bases of age and sex, she was directed to complete a DD Form
398 in June 1994;
4c. on the bases of race, she was not selected for the position of
Employee Relations Specialist, GS-230-09 in October 1994;
4d. on the bases of race and age, she was not given the opportunity to
be promoted to the position of Equal Opportunity Employment Specialist,
GS-260-09 in January 1995;
4e. on the bases of sex, race, and age, she was reassigned from Code
112 to Code 114 in July 1995; and
4f. on the bases of race and sex, her access to classified information
and to the Controlled Industrial Area was suspended on July 26, 1995.<1>
In dismissing allegations 4a-4f, the agency noted that appellant did
not initiate contact with an EEO Counselor until September 20, 1995.
The agency stated that although appellant alleged that she initiated
Counselor contact in June and September 1994, there were no records
of any such contacts. The agency also stated that its February 19,
1997 Report of Supplemental Investigation (Report) indicated that EEO
contacts prior to September 20, 1995 were informal and did not involve
allegations of discrimination. The agency further stated that appellant
was aware of the time limits for timely contact and failed to provide
justification to extend the time limit. The agency also stated that the
dismissed allegations did not constitute a continuing violation because
the allegations were distinct and unrelated and occurred over a number
of years.
Definition of the Issues of the Complaint
On appeal, appellant asserts that allegations 3b and 4a through 4f were
not properly defined.<2> Appellant does not dispute allegation a.
Appellant indicates that allegation 3b should be specifically framed
as follows: her request for continuation of pay, filed on September
6, 1995, was not properly processed and she was not advised of proper
procedure, nor informed that she could not be placed on trauma leave.
A review of the complaint reflects that appellant alleged that she filed
for continuation of pay and her request was not properly processed.
Appellant, it appears, is not challenging the denial of her continuation
of pay but is instead challenging the processing of her continuation of
pay as discriminatory. Accordingly, we redefine allegation 3b as follows:
whether because of appellant's sex, her request for continuation of pay
made on or about September 6, 1995, was improperly processed.
Appellant also contends that allegation 4a should be worded specifically
as follows: her application was not rated so that she could be
considered/compete for the position of Employee Relations Specialist
GS-230-5/7/9/11 in May 1989. We find that appellant's dissatisfaction
with the framing of the allegation centers on the agency's choice
of words. The action that appellant is challenging in the allegation
is that she was not offered or selected for the position because the
agency failed to rate her application for the position. The agency has
therefore properly defined the allegation. However, the allegation should
be revised to include all the grade levels for the disputed position.
A review of appellant's concerns regarding the framing of allegation
4b reveals that appellant wants the agency to include background and
explanatory information regarding the completion of the Form 398 in
the allegation. We find no error in the agency's omission of background
information in its framing of the allegation.<3>
Regarding allegation 4c, we find that appellant is merely providing more
information to elaborate the issue of her non-selection for the position.
The allegation therefore was properly defined.
Regarding allegation 4d, appellant asserts that the allegation should
be framed specifically as follows: on the bases of her race and age, she
was not given the opportunity to compete nor considered for the position
of Equal Employment Opportunity Specialist, GS-260-09 in January 1995.
Here again, appellant's objections to the framing of the allegation
center on the agency's choice of words. The allegation was therefore
properly defined.
With respect to allegation 4e, appellant contends that the allegation
should be defined specifically as follows: whether because of her sex,
race and age, she was improperly assigned to Code 114 in July 1995.
We see no error in the agency's definition of the issue.
Regarding allegation 4f, appellant contends that the allegation is not
complete and the following statement should be added: security denied her
due process by not processing the appeal of her suspension of access to
"DONCAF" so that she could be given a final decision and appeal through
the proper procedure. Because the due process issue is inextricably
intertwined and related to the suspension issue, we find no error in
the agency's definition of the allegation.
In summary, we find that the agency's definition of allegation 3b was
improper and should be redefined as set forth above. The agency's
definition of allegations 4a-4f was proper as specified herein.
Failure to Address Issues in Complaint
The Commission has held that failure to address an allegation in
a complaint is tantamount to dismissal by the agency. See Kapp
v. Department of the Navy, EEOC Request No. 05940662 (January 23, 1995).
Appellant contends on appeal that the agency failed to address a number
of issues raised in her complaint. Specifically, appellant identified
the unaddressed allegations as follows:
(a) whether a conflict of interest existed when EEO Counselor DM,
investigated her complaint;
(b) whether she was improperly assigned to Code 114;
(c) whether her retirement was involuntary and she was not provided an
exit interview;
(d) whether Person A was improperly assigned to the position of Employee
Development Specialist;
(e) whether appellant was not provided with training opportunities,
including EEO training;
(f) whether Person B was noncompetitively promoted in May 1995, an action
that appellant did not become aware of until December 1995;
(g) continuing violations, harassment/hostile work environment;
(h) ongoing harassment/continuing violations; and
(i) performing higher level duties and her refusal to sign her performance
evaluations.
Allegation (a)
EEOC Regulation 29 C.F.R.�1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that fails to state a
claim under �1614.103 or �1614.106(a) or states the same claim that is
pending before or has been decided by the agency or Commission. An agency
shall accept a complaint from any aggrieved employee or applicant for
employment who believes that he or she has been discriminated against
by that agency because of race, color, religion, sex, national origin,
age or disability. The Commission's federal sector case precedent has
long defined an "aggrieved employee" as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
We find that while allegation (a) was not addressed by the agency in
its final decision, the allegation fails to state a claim. Allegation
(a) is a claim of improper processing and, as such, does not state a
processable claim. See Kleinman v. U.S. Postal Service, EEOC Request
No. 05940579 (September 22, 1994); Story v. U.S. Postal Service, EEOC
Appeal No. 01965883, (March 13, 1997). When such an allegation is
raised, the agency should refer the complainant to the agency officials
responsible for the quality of complaint processing, and those individuals
should earnestly attempt to resolve dissatisfaction with the complaints
process as early as possible. EEO Management Directive 110 (4-8).
We note that EEO Counselor DM, appellant's EEO Counselor for the September
20, 1995 EEO contact, was one of the parties that appellant identified
in her complaint as having been provided with EEO training and having
been given a temporary promotion to Employee Relations Specialist GS-9.
We find, however, that appellant has not demonstrated how she was harmed
by being counseled by EEO Counselor DM. Furthermore, appellant has not
stated that she requested or was denied a change of Counselor.
Allegations (b) and (h)
Allegation (b) states the same claim as allegation 4e and is therefore
properly dismissed pursuant to 29 C.F.R. �1614.107(a). Both allegations
pertain to appellant's reassignment from one Code to another in July 1995.
Although 29 C.F.R. �1614.107(a) generally applies to a situation where an
individual files more than one complaint containing the same allegations,
we find it similarly applicable where a complaint contains the same
allegations. See Cheh v. Nuclear Regulatory Commission, EEOC Appeal
No. 01952389 (September 14, 1995). Because allegation (h) is the same
allegation as allegation (g), it is also properly dismissed.
Allegations (c), (d), (e), (f), (g), and (i)
In the narrative statement appended to her complaint, appellant
alleged that she was forced to retire because of the agency's alleged
discriminatory actions (allegation c); that she was not given an exit
interview (allegation c); that in 1993 or 1994, she was not provided
EEO training (allegation e); that she was subjected to harassment and a
hostile work environment (allegation g); and that since 1989, she was
performing work at a GS-9 and GS-11 grade levels although she was a
GS-7 (allegation i). Accordingly, the agency's failure to address these
allegations in its final decisions was in error. Accordingly, we hereby
remand allegations (c) through (g), and (i) for further processing.
Untimely EEO Contact
EEOC Regulation 29 C.F.R. �1613.214(a)(1)(i), effective prior to
October 1, 1992, required that complaints of discrimination be brought
to the attention of the EEO Counselor within 30 days of the alleged
discriminatory event, the effective date of an alleged discriminatory
personnel action, or the date that the aggrieved person knew or reasonably
should have known of the discriminatory event or personnel action.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) extended this time limit to
45 days for actions occurring on or after October 1, 1992.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) permits the time period to be
extended under certain circumstances and 29 C.F.R. �1614.604(c) provides
that the time limits in Part 1614 are subject to waiver, estoppel and
equitable tolling. Although time limitations are subject to waiver,
estoppel and equitable tolling, complainants are required to act with due
diligence in pursuit of their claims. See Sapp v. U.S. Postal Service,
EEOC Request No. 05950666 (May 31, 1996); Jenkins v. Department of the
Army; EEOC Request No. 05940721 (January 26, 1996); O'Dell v. Department
of Health and Human Services, EEOC Request No. 05901130 (December 27,
1990).
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the limitation period
is triggered. See Ball v. U.S. Postal Service, EEOC Request No. 05880247
(July 6, 1988). Thus, the limitations period is not triggered until
a complainant suspects discrimination, but before all the facts that
support a charge of discrimination have become apparent.
The Commission has also held that the time requirements for initiating EEO
counseling could be waived as to certain allegations within a complaint
when the complainant alleged a continuing violation; that is, a series
of related discriminatory acts, one of which fell within the time period
for contacting an EEO Counselor. See McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990). Where a complainant alleges
recurring incidents of discrimination, the agency is obligated to initiate
an inquiry into whether any allegations untimely raised fall within the
ambit of the continuing violation theory. See Williams v. Department of
Defense, EEOC Request No. 05920506 (August 25, 1992). Relevant to the
determination are whether the acts were recurring or were more in the
nature of isolated employment decisions; whether an untimely discrete act
had the degree of permanence which should have triggered an employee's
awareness and duty to assert his or her rights; and, whether the same
agency officials were involved. Woljan v. Environmental Protection
Agency, EEOC Request No. 05950361 (October 5, 1995).
In determining whether a continuing violation is present, it is important
to consider whether appellant had prior knowledge or suspicion of
discrimination. See Sabree v. United Brotherhood of Carpenters and
Joiners Local No. 33, 921 F.2d 396 (1st Cir. 1990). It is necessary to
distinguish between appellants who believed they had been subjected to
discrimination, and therefore had the obligation to file promptly or lose
their claims, versus appellants who are unable to appreciate that they
are being discriminated against until they have lived through a series of
acts and are thereby able to perceive the overall discriminatory pattern.
See Hagen v. Department of Veterans Affairs, EEOC Request No. 05920709
(January 7, 1993).
Regarding the issue of timeliness, appellant contends on appeal that
there was "no EEO posting in her immediate work area." In its response
to appellant's appeal, the agency asserts that all employees, including
appellant, who were assigned to the Human Resources Department were aware
of the names and telephone numbers of the EEO Counselors, that there
were postings of EEO Counselors throughout the facility and employees
were periodically briefed regarding EEO rights and time frames associated
with the complaint process.
It is well-settled that constructive knowledge of the time limit for
contacting an EEO Counselor will be imputed to a complainant where the
agency has fulfilled its statutory duty of posting notices informing
employees of their rights and obligations under Title VII. Thompson
v. Department of the Army, EEOC Request No. 05910474 (September 12, 1991).
In order to impute constructive knowledge to the complainant, the agency,
however, may not rely on a generalized affirmation that it posted EEO
information; it must submit specific evidence that the poster contained
notice of the applicable time limits. Pride v. U.S. Postal Service, EEOC
Request No. 05930134 (August 19, 1993); Yashuk v. U.S. Postal Service,
EEOC Request No. 05890382 (June 2, 1989).
We are unable to affirm the agency's dismissal of allegations 4a-4f
on the grounds of untimely EEO contact because the agency has not
established that appellant was aware of the applicable limitation period
for contacting an EEO Counselor. Without specific evidence that notices
containing the 30 and/or 45-day time limit were conspicuously posted or
specific evidence that appellant was otherwise aware of the time limit,
the Commission cannot determine the timeliness of appellant's EEO contact.
See York v. Department of Veterans Affairs, EEOC Request No. 05940575
(November 3, 1994) (agency's generalized statement that appellant was made
aware of time frame without information that notice actually contained
the time limit not considered sufficient proof of constructive notice);
Santiago v. U.S. Postal Service, EEOC Request No. 05950272 (July 6,
1995) (agency official's affidavit that he maintained bulletin boards
containing information on EEO rights and responsibilities, including time
limits, found to constitute sufficient proof of constructive notice).
The record contains no evidence that appellant had actual or constructive
notice of the limitation period. The agency's generalized assertions
that it displayed posters of the EEO process and that appellant knew of
the applicable time limits because she worked in Human Resources do not
provide a sufficient basis upon which the Commission can conclude that
appellant was aware of the time limit for Counselor contact.
Regarding the contacts made by appellant prior to September 20, 1995,
appellant alleged in her complaint that she first contacted EEO Counselor
NN in June or July 1994, regarding allegation 4b and a promotion.
Appellant also alleged that she contacted the EEO Office again around
September 20-25, 1994, after she learned about Person A's promotion.
She alleges that she spoke to EEO Counselor DB.
The agency's Report reveals that appellant stated that she spoke to EEO
Specialist SJ in 1989, regarding allegation 4a. In its Report, the agency
stated that there were no records indicating that appellant requested
counseling after this meeting with SJ. The Report also indicates that NN
remembered discussing the completion of the Form 398 and told her that
the incidents involved Privacy Act violations and suggested that she
contact the agency's legal office. No other contacts are referenced
in the Report. The Report also indicates that if discrimination was
raised during appellant's contacts, appellant would have been referred
for counseling.
In responding to the Report, appellant asserts on appeal that when she
met with NN in July 1994, he never gave her any guidance regarding the
EEO process and did not refer her to the legal office. Appellant further
contends that during her 14 years working for the agency, she was never
made aware of the EEO process and that despite several complaints made
to her supervisor, she was never informed that she should contact the EEO
office. Appellant asserts that she contacted the EEO office on September
22, 1994, and made an appointment with DB. At her appointment, she
discussed Form 398, violation of her privacy and her not being selected
for promotions. Appellant further asserts that after meeting with DB,
DB telephoned her and told her that she had no basis for an EEO complaint.
Appellant also asserts that she contacted EEO Counselor CW prior to 1995,
regarding an accusation made against her by Person B but she was not
offered any guidance.
The information provided in the agency's unsigned Report does not
sufficiently address the contact or timeliness issues. For example,
while the Report states that there are no records or evidence that
appellant requested counseling after meeting with EEO Counselor SJ,
the Report does not indicate how that conclusion was obtained. It is
also not clear whether appellant in fact met with SJ. The agency also
indicated in the Report that appellant could not have met with DB prior to
January 1995, but provided no independent proof to support its assertion
nor furnished any proof regarding the contacts with DB.
Similarly, the Commission notes that while the agency states in its
appeal brief that NN was not an EEO Counselor, there is also no evidence
to support the assertion.<4> Moreover, there is no statement from NN
addressing specifically his contacts with appellant, what was discussed
and what actions, if any, he advised appellant to take. Other than the
agency's assertions in the Investigative Report and in its brief that
allegations which do not fall within the discrimination statutes are
referred elsewhere, there is no proof which would establish the office's
policies and record keeping procedures in these matters.
Overall, the inquiry the agency undertook on remand before dismissing
the allegations for untimeliness was insufficient. Accordingly, for the
second time, we cannot make a reasoned determination as to the timeliness
of appellant's EEO contact. In addition, we note that the agency's final
decision is also lacking in its completeness. Nowhere, for example, does
the agency address when appellant may have had a reasonable suspicion
of discrimination as to any of the alleged discriminatory actions
or the appellant's intent to pursue the EEO process, issues relevant
to a determination of timeliness in the present matter. Nor does the
agency provide an adequate analysis of the continuing violation theory.
The Commission cannot make findings based on the agency's unsupported and
conclusive assertions. The Commission has consistently held that where,
as here, there is an issue of timeliness, "[a]n agency always bears
the burden of obtaining sufficient information to support a reasoned
determination as to timeliness." Williams v. Department. of Defense,
EEOC Request No. 05920506 (August 25, 1992). Accordingly, we must again
remand this matter.
Consistent with our discussion herein, the agency's dismissal of
allegations 4a-4f is VACATED. On remand, the agency shall conduct a
supplemental investigation on the timeliness issue consistent with the
Order below. The agency's dismissal of allegations (a), (b), and (h) is
AFFIRMED. The agency's dismissal of allegations (c) through (g), and (i),
is REVERSED and these allegations are REMANDED for further processing.
ORDER
The agency is ORDERED to conduct a supplemental investigation and to
take the following actions:
1. The agency shall conduct an inquiry sufficient to enable it to make
a reasoned determination as to the timeliness of EEO Counselor contact.
The agency shall notify appellant that she has fifteen (15) calendar days
from receipt of the agency's notification in which to provide the agency
with clear information regarding her EEO contacts. Appellant shall
be requested to provide the dates, names, and places of alleged EEO
contacts prior to September 20, 1995, and the nature of each of those
alleged contacts. Thereafter, the agency shall supplement the record
with affidavits and other relevant evidence from those EEO individuals
purportedly contacted by appellant. Such evidence shall include,
but is not limited to, the dates of the prior contacts, the nature of
those contacts and shall denote whether appellant exhibited an intent
to begin the EEO process and to pursue her allegations when the contacts
were made. If the agency is unable to obtain specific information from
EEO officials who may no longer be available, then the agency should
so state and obtain the required information from EEO officials having
custody and control of the records.
2. The agency shall supplement the record with specific evidence that
shall include, but is not limited to, affidavits from relevant agency
officials confirming the existence of EEO posters, their contents and
location relative to where appellant would be expected to see them,
and the effective dates of posting and any other documentation regarding
whether appellant had actual or constructive notice of the time period for
Counselor contact during the relevant time period. In the event notices
were posted, the agency shall place copies of the posters (or affidavits
describing the posters if the posters are unavailable) in the record.
The agency shall gather any other evidence necessary to establish when
appellant learned of the time limit for contacting an EEO Counselor.
3. In dismissing any of the allegations for untimeliness, the agency
shall provide a detailed and reasoned analysis and the facts relied upon
as to each and every allegation dismissed.
4. The agency shall not dismiss any allegation de facto by omitting an
issue from the final decision.
5. After completion of the investigation, the agency shall decide whether
to process or dismiss the remanded allegations. 29 C.F.R. �1614.106
et seq. The supplemental investigation and issuance of a notice of
processing and/or final agency decision must be completed within 45
(forty-five) calendar days of the date this decision becomes final.
A copy of the notice of processing and/or a copy of the new final agency
decision regarding allegations 4a-4f must be sent to the Compliance
Officer as referenced below.
6. The agency is ORDERED to process the remanded allegations (c) through
(g), and (i) in accordance with 29 C.F.R. �1614.108. The agency shall
acknowledge to the appellant that it has received the remanded allegations
(c) through (g), and (i) within thirty (30) calendar days of the date
this decision becomes final. The agency shall issue to appellant a
copy of the investigative file and also shall notify appellant 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 appellant requests a final decision without
a hearing, the agency shall issue a final decision within sixty (60)
days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
with regard to allegations (c) through (g), and (i) must be sent to the
Compliance Officer as 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 (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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. If you
file a request to reconsider and also file a civil action, 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:
Oct. 20, 1998
DATE Ronnie Blumenthal, Director
1We note that appellant alleged that she was discriminated against also
on the bases of color (White), physical and mental disability (duress,
stress, emotional, disability annuitant).
2Appellant did not set forth individual allegations of discrimination in
her complaint. Rather, she appended to her complaint a 26-page narrative
statement from which the agency extrapolated the individual allegations
identified in FAD-1 and FAD-2.
3It appears that appellant may be alleging that having to complete
the Form 398 or its use by the agency was a violation of her right to
privacy. The Commission has consistently held that an alleged violation
of the Privacy Act is outside the purview of the EEO process. See Bucci
v. Department of Education, EEOC Request No. 05890289 (April 12, 1989).
4We note that we have held that a complainant satisfies the Counselor
contact requirement by contacting an agency official logically connected
with the EEO process and exhibiting an intent to begin the EEO process.
Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989).