Linda K. Prock, Complainant,v.Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionMay 7, 2001
01A04933_r (E.E.O.C. May. 7, 2001)

01A04933_r

05-07-2001

Linda K. Prock, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.


Linda K. Prock v. Department of the Navy

01A04933

May 7, 2001

.

Linda K. Prock,

Complainant,

v.

Robert B. Pirie, Jr.,

Acting Secretary,

Department of the Navy,

Agency.

Appeal No. 01A04933

Agency No. DON-00-62412-001

DECISION

Complainant filed an appeal with this Commission from an agency decision

pertaining to 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. and Section 501 of the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.

The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.

Believing that she was the victim of discrimination based on sex,

disability and in reprisal for prior protected activity, complainant

left a telephone message with the agency EEO office on or about

February 29, 2000. The record shows that on that same day, the EEO

Counselor telephoned complainant, who referred the EEO Counselor to

complainant's attorney. The record reflects that on four different

occasions over a two-week period, the agency EEO Counselor requested

that complainant's attorney call the EEO office. On March 16, 2000, the

EEO Counselor finally contacted complainant's attorney and was informed

that complainant was too upset to speak to the EEO Counselor. Further,

during that same phone conversation on March 16, 2000, complainant's

attorney indicated that complainant may be interested in mediation.

Furthermore, the EEO Counselor informed complainant's attorney that

she would send complainant a certified letter with the necessary forms

and advised her attorney that she needed to schedule a phone interview

with complainant and her attorney to get the informal process started.

The agency mailed the Alternative Dispute Resolution (ADR) letter to

complainant on March 20, 2000. Further, the letter requested that the

complainant reply by April 4, 2000. Complainant never responded to that

letter and neither complainant nor her attorney attempted to contact

the EEO Counselor after the phone conversation of March 16, 2000.

On April 27, 2000, the agency issued a notice of final interview.

While indicating that the notice constituted �final counseling,� the

agency indicated that matters were presented by complainant's attorney,

but that complainant did not respond or provide information previously

requested to start the EEO complaint process.

On May 11, 2000, complainant filed the formal complaint that is the

subject of the instant appeal.

On May 26, 2000, the agency issued a final decision. Therein, the agency

determined that complainant's complaint was comprised of the following

two claims:

(1) on February 29, 2000, several named agency employees made up a false

statement against complainant and circulated it; and

(2) on May 12, 2000, complainant was terminated from the agency.

The agency dismissed complainant's complaint for failure to raise the

claims before an EEO Counselor pursuant to 29 C.F.R. � 1614.107(a)(2).

Based on a review of the record, we find the agency properly dismissed

complainant's complaint on the grounds that complainant did not raise

the claims before an EEO Counselor and that they are not like or related

to matters for which she underwent EEO counseling. The Commission

determines that complainant's February 29, 2000 telephone contact was not

made with intent to pursue the EEO complaint process. During that phone

conversation on February 29, 2000, complainant specifically instructed

the agency to contact her attorney regarding her formal complaint.

At complainant's request, the agency made good faith efforts to contact

complainant's counsel to conduct counseling on complainant's complaint,

but to no avail. The Commission notes that the purpose of EEO counseling

is to allow both the complainant and the agency to informally resolve

the complaint before going to the next higher formal complaint stage.

29 C.F.R. � 1614.105 (a). Accordingly, the agency's decision dismissing

complainant's complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 (S0900)

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. 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 (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

May 7, 2001

__________________

Date