David Bernstine, Gary Glenn, Theodore Carlblom, Rick Purpura, Richard Tasby, Steve Ingram, Complainants,v.Toby Rosenblatt, Chairman, The Presidio Trust, Agency.

Equal Employment Opportunity CommissionApr 8, 2004
01A41296_r (E.E.O.C. Apr. 8, 2004)

01A41296_r

04-08-2004

David Bernstine, Gary Glenn, Theodore Carlblom, Rick Purpura, Richard Tasby, Steve Ingram, Complainants, v. Toby Rosenblatt, Chairman, The Presidio Trust, Agency.


David Bernstine, et al. v. The Presidio Trust

01A41296, 01A41298, 01A41410, 01A41411, 01A41412, 01A41413

April 8, 2004

.

David Bernstine, Gary Glenn, Theodore Carlblom,

Rick Purpura, Richard Tasby, Steve Ingram,

Complainants,

v.

Toby Rosenblatt,

Chairman,

The Presidio Trust,

Agency.

Appeal Nos. 01A41296, 01A41298, 01A41410, 01A41411, 01A41412, 01A41413

Agency Nos. PT0303-DB01, PT0204-GG01, PT0302-TC01, PT0301-RP01,

PT0304-RT02, PT-0205-SI01

DECISION

Complainants filed appeals with this Commission concerning the agency's

refusal to process their claims of discrimination against the agency

regarding the terms and conditions of their employment and their

terminations from the agency.

The record reveals that each of the above listed complainants contacted

the agency's EEO Office to pursue discrimination complaints. The record

contains a February 9, 2004 letter from the agency stating that it is

a �wholly owned corporation of the United States government� which is

not subject to the EEOC's jurisdiction.

In the present case, the Commission will consider the agency's February

9, 2004 letter as a final agency decision dismissing the above mentioned

claims. The Commission recently issued a decision in James A. Newman

v. The Presidio Trust, EEOC Request No. 05A30686 (March 18, 2004),

rejecting the agency's argument that it was exempt from the Commission's

jurisdiction. Thus, in the present cases we find the agency improperly

refused to process the complainants' claims.

Accordingly, the agency's decisions are REVERSED and these matters are

REMANDED to the agency for further processing in accordance with the

Order herein.

ORDER

The agency shall process the remanded claims in accordance with

29 C.F.R. � 1614.105, et seq., including providing EEO Counseling

if appropriate. Within 30 calendar days of the date this decision

becomes final the agency shall acknowledge to complainants that it

has received the remanded claims. The letters of acknowledgment shall

inform complainants that the agency will process the matters pursuant

to 29 C.F.R. � 1614.105 et seq.

A copy of the agency's letters of acknowledgment to complainants must

be sent to the Compliance Officer as referenced herein.

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.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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), 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 19848,

Washington, D.C. 20036. 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 (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

April 8, 2004

__________________

Date