01985654
10-28-1999
Carol Briley, Appellant, v. John W. Carlin, Archivist of the United States, National Archives and Records Administration, Agency.
Carol Briley v. National Archives and Records Administration
01985654
October 28, 1999
Carol Briley, )
Appellant, )
)
v. ) Appeal No. 01985654
) Agency Nos. 9709; 9712
John W. Carlin, )
Archivist of the United States, )
National Archives and Records )
Administration, )
Agency. )
_________________________________)
DECISION
Appellant filed an appeal with this Commission from a decision dated June
12, 1998 dismissing a portion of appellant's complaint<1>for failure to
cooperate and the remaining portion of appellant's complaint for failure
to receive EEO counseling. The agency identified the complaint as being
comprised of fourteen separate allegations.
The instant complaint was the subject of a prior Commission decision in
Briley v. National Archives and Records Admin., EEOC Appeal No. 01975242
(Apr. 6, 1998). In EEOC Appeal No. 01975242 the Commission found that
"appellant alleged that the agency has engaged in a pattern and practice
of denying her `grooming, training and advancement' opportunities since
she began to pursue a GS-12 position in 1993." Briley, EEOC Appeal
No. 01975242. The Commission remanded the matter so that the agency could
"request that appellant provide specific dates and incidents that comprise
the alleged pattern and practice by the agency of denying appellant
advancement opportunities." Id. The Commission advised appellant not
to include incidents that were previously raised in prior complaints
except as clearly designated background information. Id.
The agency subsequently requested additional information from appellant
regarding the consolidated complaints. Appellant responded by letter
dated June 7, 1998 as follows (emphasis original):
[Appellant's] claims in the these two consolidated complaints was
essentially that [appellant], a GS-11 Archivist (1420 series) has
been denied since 1991 a promotion to a GS-12 as part of a pattern and
practice in [the agency] of denying women promotions. . . . We believe
the following facts are relevant to this claim and that we are not so much
talking specific instances with specific dates, but general patterns and
practices extending back into the late 80's to the present. These general
events include the following which we wish to have investigated.
Appellant then listed fourteen separately numbered "events" which
primarily involved her claim that women archivists in the agency were not
being promoted or given advancement opportunities as frequently as men.
The agency treated these fourteen "events" as separate allegations.
The Commission finds that there is just one allegation in the fourteen
events listed by appellant in her June 7, 1998 letter: the agency has
failed to promote appellant to a GS-12 since 1991. The fourteen events
are merely evidence or background information to that claim. The agency
should have treated this as one allegation. Appellant has received EEO
counseling on this issue. Therefore, dismissal of this allegation for
failure to receive EEO counseling was improper. The agency's contention
that appellant may be trying to raise a class complaint has been denied
by appellant on appeal.
EEOC Regulation 29 C.F.R. �1614.107(g) provides that the agency shall
dismiss any portion of a complaint:
Where the agency has provided the complainant with a written request to
provide relevant information or otherwise proceed with the complaint,
and the complainant has failed to respond to the request within 15
days of its receipt or the complainant's response does not address the
agency's request, provided that the request included a notice of the
proposed dismissal. Instead of dismissing for failure to cooperate,
the complaint may be adjudicated if sufficient information for that
purpose is available.
The Commission finds that dismissal of the failure to promote allegation
for failure to cooperate was improper. Appellant sufficiently responded
to the agency's request for information regarding her complaint.
Although the agency noted that appellant filed a civil action on the
same matter, the agency did not dismiss the instant complaint on such
grounds and the record does not contain a copy of the civil action.
Therefore, we do not address whether the instant complaint may be
properly dismissed on the grounds that it is the basis of a pending or
decided civil action. The Commission also notes that the Commission is
not addressing whether the instant complaint is properly dismissible on
other grounds not discussed in this decision and not specifically relied
upon by the agency in its decision.
The agency's decision dismissing the complaint is REVERSED and we REMAND
the complaint to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgement to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
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 (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:
10/28/1999
DATE Carlton M. Hadden, Acting Director
1 The record reflects that appellant's complaint is comprised of the
consolidation of two separate complaints that were identified as Complaint
Nos. 9709 and 9712.