Yvonne L. Kelsey, Complainant,v.Thomas E. White, Secretary, Department of the Army, , Agency.

Equal Employment Opportunity CommissionJul 27, 2001
01993199_r (E.E.O.C. Jul. 27, 2001)

01993199_r

07-27-2001

Yvonne L. Kelsey, Complainant, v. Thomas E. White, Secretary, Department of the Army, , Agency.


Yvonne L. Kelsey v. Department of the Army

01993199

July 27, 2001

.

Yvonne L. Kelsey,

Complainant,

v.

Thomas E. White,

Secretary,

Department of the Army, ,

Agency.

Appeal No. 01993199

Agency No. AUGAFO9810I0230

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision dated February 18, 1999 dismissing 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.

The agency characterized her complaint as alleging that she was subjected

to discrimination on the bases of race and sex when: (1) she was denied

access to cross training thereby severely limiting her promotion and

career enhancement opportunities; (2) she was denied the opportunity to

take on higher level tasks and activities, which increase her skills and

experience, thereby severely limiting her promotion and career advancement

opportunities; (3) she was given lower performance ratings on her annual

and semi-annual performance evaluation than her record warranted, and her

duties were not properly evaluated; (4) she was given a job description

that did not accurately reflect her duties and responsibilities; (5) she

was not properly recognized or regarded for her work and did not receive

performance awards that she deserved; (6) she was denied promotions; (7)

she was denied upgrades; (8) she was not hired into positions for which

she was qualified; (8) she was not promoted into positions for which

she was qualified; and (9) she was denied training in April/May 1998.

In its decision, the agency dismissed claims (1) through (4) and

(6) through (8) because they were not raised with an EEO Counselor,

and alternatively, because complainant failed to respond adequately to

the agency's January 7, 1999 request for information. The agency also

dismissed claim (5) as stating the same claim as that raised in agency

complaint number AUGAFO9808I0110, and claim (9) for untimely EEO contact.

Upon review of the record, we find that claims (1) through (4) and (6)

through (8) were improperly dismissed. First, it is clear from the

record that claims (1) through (4) and (6) through (8) are matters

that complainant raised with the EEO Counselor, or are matters like

or related to matters raised with the Counselor, and were therefore

improperly dismissed under 29 C.F.R. � 1614.107(a)(2). These claims were

also improperly dismissed under 29 C.F.R. � 1614.107(a)(7), for failure

to cooperate. In the present case, the agency dismissed the claims

based on complainant's failure to adequately respond to its January 7,

1999 request for information concerning her complaint. The Commission

finds that complainant's alleged failure to adequately respond to one

request for information does not, in the instant matter, rise to the

level where dismissal for failure to cooperate is appropriate. Therefore,

we find that the agency improperly dismissed claims (1) through (4) and

(6) through (8) for failure to cooperate.

We also find that claim (9) was improperly dismissed for untimely EEO

contact. The record clearly indicates that complainant claimed she had

been discriminated against in the above stated manner on a continuous

and ongoing basis, and that her claim that she was denied training in

April and May 1996 was merely an example of the ongoing discrimination

in the area of training. As complainant specifically indicated that

her claims were �up to and including the present time,� we find that

the April and May 1998 examples of denied training are part of her

larger claim of continuous denial of training opportunities. As such,

complainant's September 18, 1998 EEO Counselor contact was timely.

Finally, regarding claim (5), we find that there is insufficient evidence

in the record to determine if complainant is claiming the same issue as

that raised in agency complaint number AUGAFO9808I0110, where she claimed

discriminatory denial of a performance award. Although complainant

asserts she was not properly recognized for her work and did not receive

performance awards that she deserved, she does not provide enough specific

information for the Commission to ascertain if the claims are identical.

Therefore, we REMAND claim (5) to the agency to supplement the record

with information concerning the specifics of claim (5).

Accordingly, the agency's dismissal of complainant's claim (5) is VACATED.

The agency's dismissal of claims (1) through (4) and (6) through (9),

as defined by the Commission herein, is REVERSED, and claims (1) through

(9) are REMANDED to the agency for further processing in accordance with

this decision and the Order below.

ORDER

The agency is ORDERED to take the following actions:

Within fifteen (15) calendar days of the date this decision becomes final,

the agency shall contact complainant and request clarification of claim

(5), that she was not properly recognized for her work and did not receive

performance awards that she deserved. In particular, the agency shall

request complainant to specify the scope of her claim and the period of

time she believes she should have received performance awards.

Within forty-five (45) calendar days of the date this decision becomes

final, the agency shall issue a notice of processing and/or a new decision

regarding claim (5).

With regard to claims (1) through (4) and (6) through (9), the agency

shall process the claims in accordance with 29 C.F.R. � 1614.108.

The agency shall acknowledge to the complainant that it has received

the remanded claims within thirty (30) calendar days of the date this

decision becomes final. The agency shall issue to complainant a copy

of the investigative file and also shall notify complainant 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 complainant requests a final decision without

a hearing, the agency shall issue a final decision within sixty (60)

days of receipt of complainant's request.

A copy of the agency's notice of processing and/or new decision

regarding claim (5), and copy of the agency's letter of acknowledgment

to complainant and a copy of the notice that transmits the investigative

file and notice of rights concerning the remaining claims must be sent

to the Compliance Officer as referenced below.

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

July 27, 2001

__________________

Date