01975537
10-14-1998
Richard E. Spriggs, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Richard E. Spriggs v. Department of the Army
01975537
October 14, 1998
Richard E. Spriggs, )
Appellant, )
)
v. ) Appeal No. 01975537
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
_________________________________)
DECISION
Appellant filed an appeal with this Commission from a decision of the
agency dated June 11, 1997 dismissing a portion of his complaint on
the grounds that appellant failed to timely contact an EEO Counselor
and for failure to state a claim. In the June 11, 1997 decision the
agency stated that appellant had alleged in the complaint that he was
subjected to a hostile work environment from November 1993 through July
18, 1996. The agency found that appellant initially contacted an EEO
Counselor on May 13, 1996. The agency stated that it was dismissing
all issues prior to March 1996 for untimely EEO Counselor contact.
The agency listed only four allegations in the June 11, 1997 decision.
By letter dated June 17, 1997 the agency requested the appointment of
an investigator for the portion of appellant's complaint concerning 10
allegations of a hostile work environment occurring during the period
of March 1996 through July 18, 1996.
On appeal appellant argues that the agency has ignored 51 allegations.
Furthermore, prior to the issuance of the June 11, 1997 decision appellant
had informed the agency that the agency was ignoring allegations in the
complaint. The agency did not find in its decision that appellant did
not raise any other allegations in his complaint. The agency may not
dismiss allegations by ignoring allegations. The Commission finds that
it is inappropriate in the instant matter to determine whether the four
dismissed allegations were timely raised with an EEO Counselor when there
may be other allegations of harassment in the complaint. The Commission
also finds that it is inappropriate in the instant matter to determine
whether appellant was aggrieved in the four dismissed allegations when
there may be other allegations of harassment in the complaint.
The agency found that appellant only alleged that he was discriminated
against on the basis of reprisal in the four dismissed allegations and
that appellant did not engage in any protected activity. The Commission
finds that in the complaint appellant alleged that he was discriminated
against on the bases of race, color, disability, sex, and age, in addition
to retaliation. The Commission finds that it is unclear if the dismissed
allegations are solely based on retaliation. The Commission finds that it
would confuse the matter to, at this juncture, bifurcate the harassment
allegations and determine whether the four dismissed allegations state
a claim of retaliation.
The Commission finds that a meeting between the parties may clarify
the definition of the complaint. The Commission shall remand the
complaint to the agency so that appellant can meet again with an EEO
Counselor in order that an agreement can be reached on the issues
in appellant's complaint. See Smith v. United States Postal Serv.,
EEOC Request No. 05921017 (Apr. 15, 1993). The Commission noted
in Smith that EEO Management Directive 110, Chap. 2, III (Oct. 22,
1992), provides that at the counseling stage, the EEO Counselor must be
certain that the complainant's issues are clearly defined and that the
complainant agrees on what issues are to be the subject of the inquiry
and subsequent attempts at resolution. Id. Therefore, we shall remand
the complaint for clarification. On remand, the EEO Counselor, after
meeting with appellant, must issue a new report concerning the meeting(s)
and defining the complaint. See id.
The agency's decision dismissing a portion of the complaint is VACATED
and we REMAND the complaint to the agency for further processing in
accordance with this decision and applicable regulations.
ORDER
The agency is ORDERED to process appellant's complaint in accordance with
29 C.F.R. Part 1614 and instructions in this decision. Specifically,
the agency shall:
1. Schedule in writing a meeting between appellant and an EEO Counselor
so an agreement can be reached on the definition of the complaint.
After the meeting(s), the counselor must issue a new counselor's report
concerning the meeting(s) and defining the complaint. Appellant shall
not be required to refile his complaint.
2. If an agreement cannot be reached on a definition of the issues in
appellant's complaint, then the agency shall issue a decision defining the
complaint. Such a decision must explicitly define all the allegations in
the complaint, i.e., the agency shall not dismiss allegations, de facto,
by failing to define or address allegations.
3. The agency shall notify appellant in writing of all allegations,
if any, it is accepting for investigation. If the agency wishes
to dismiss any allegations, then it must issue a decision doing so.
Such a decision must list all allegations being dismissed and provide
the specific grounds for dismissal.
4. The agency shall complete all the above actions within 60 calendar
days of the date this decision becomes final.
5. A copy of the agency's letter to appellant arranging a meeting with
an EEO Counselor, and a copy of the acceptance letter and/or decision
issued pursuant to instructions 2 or 3 of this Order, must be sent to
the Compliance Officer as referenced herein.
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:
October 14, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations