01985521
11-08-1999
Andrea Cole, Appellant, v. Larry H. Summers, Secretary, Department of the Treasury, Agency.
Andrea Cole, )
Appellant, )
)
v. ) Appeal No. 01985521
) Agency No. 98-3141
Larry H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
___________________________________)
DECISION
Appellant filed the instant appeal from the agency's decision dated June
3, 1998 dismissing a portion of appellant's complaint and stating that
the agency was not processing a portion of the complaint. The agency
defined the complaint as alleging that appellant was discriminated
against as follows:
Appellant was discriminated against on the bases of sex and retaliation
when she was rated ineligible for the position of Estate Tax Attorney
under vacancy numbers 06-10-7NEE-172 and 183.
Appellant was subjected to a hostile environment based on sex and
retaliation when:
Appellant's manager gave appellant work that was secretarial between
April and October 1997;
In April 1997 appellant's manager cautioned a fellow employee against
making sexual comments or jokes to appellant;
On November 10, 1997 appellant's manager advised appellant that he could
help appellant repair her reputation.
Appellant was forced to resign effective January 9, 1998.
The agency breached the settlement agreement appellant signed on June
17, 1996.
Allegation 1
The Commission finds that the agency properly dismissed allegation 1 for
failure to state a claim pursuant to 29 C.F.R. �1614.107(a). The agency
claims and appellant does not dispute that the vacancy announcements in
allegation 1 were canceled. Therefore, we find that appellant was not
aggrieved in allegation 1.
Allegations 2 and 3
The agency dismissed allegation 2 as moot. The agency found regarding
allegation 3 that appellant was notified that she had not received EEO
counseling on the constructive discharge issue (allegation 3). The agency
stated that it had instructed appellant to contact an EEO Counselor if
she wished to pursue allegation 3, but that appellant had made no such
contact. The agency did not expressly dismiss allegation 3, but rather
stated that allegation 3 could not be processed as part of the complaint.
The Commission finds that allegation 3 is part of the complaint because
appellant raised the issue in the complaint. The Commission finds that
the agency has effectively dismissed allegation 3 without a reason.
To the extent that the agency is dismissing allegation 3 on the grounds
that appellant did not receive EEO counseling, see �1614.107(b), we
find that allegation 3 is like or related to the harassment allegation
(allegation 2) for which appellant sought counseling. Therefore, we
find that the agency improperly dismissed allegation 3.
The Commission finds that allegation 2 was improperly dismissed
as moot because appellant raised a claim of constructive discharge
in her complaint. The Commission does not find that appellant has
abandoned the constructive discharge issue. Appellant continues to
pursue the constructive discharge issue on appeal and claims that she
raised the issue with the EEO Counselor. The record, however, does not
indicate that appellant ever received EEO counseling on the constructive
discharge issue. Rather than placing the burden on appellant to contact
an EEO Counselor to pursue the constructive discharge allegation, the
agency should have informed appellant that the agency was commencing
counseling on the constructive discharge claim. Therefore, we shall
remand allegations 2 and 3 so that the agency may contact appellant and
inform her that the agency will be providing her with EEO counseling on
the constructive discharge allegation. If appellant does not pursue the
constructive discharge allegation, then allegation 3 can be dismissed for
failure to cooperate, if appropriate, and allegation 2 can be dismissed
as moot, if appropriate.
Allegation 4
The agency found that it had previously informed appellant that her
breach of settlement allegation, as raised in the EEO complaint, could
not be processed as part of a complaint. On appeal appellant requests
that her settlement breach allegation be considered properly raised.
Allegations of settlement breach must be raised in writing with the
EEO Director. 29 C.F.R. �1614.504(a). Appellant has not claimed that
she notified the EEO Director of the alleged noncompliance with the
settlement agreement. Therefore, we find that appellant's breach of
settlement claim has been prematurely appealed to the Commission and
we dismiss the breach of settlement claim. If appellant wishes to
pursue her breach of settlement allegation, then she should follow the
procedures set forth in �1614.504(a) by notifying the EEO Director in
writing of the breach of settlement. The Commission does not address
whether such a breach allegation would be timely raised.
The agency's decision dismissing allegation 1 is AFFIRMED. The agency's
decision dismissing allegations 2 and 3 is REVERSED and we REMAND
allegations 2 and 3 to the agency for further processing in accordance
with this decision and applicable regulations. The appeal of allegation 4
(breach of settlement) is DISMISSED.
ORDER
The agency shall send to appellant, within 30 days of the date this
decision becomes final, a letter informing appellant that the agency
will commence EEO counseling on the constructive discharge claim.
If appellant does not pursue the constructive discharge allegation, then
allegation 3 can be dismissed for failure to cooperate, if appropriate,
and allegation 2 can be dismissed as moot, if appropriate. If the
constructive discharge claim is pursued by appellant, then the agency
shall process allegations 2 and 3 pursuant to 29 C.F.R. �1614.108 et seq.
A copy of the agency's letter to appellant must be sent to the Compliance
Officer 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. �l6l4.604(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:
November 8, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations