01993078
05-11-2000
Charla A. Gresham, Appellant, No. 01993078 v. 9901J0020 Louis Caldera, Secretary, Department of the Army, Agency.
Charla A. Gresham, )
Appellant, )
) Appeal
No. 01993078
v. ) Agency No.
9901J0020
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
On March 4, 1999, the complainant filed a timely appeal from a February 5,
1999 final agency decision dismissing her complaint.
In its final decision, the agency defined the issue of the complaint as
whether the complainant was sexually harassed (quid pro quo and hostile
work environment) when she was denied promotions and awards on the
bases of her race (African American), color (black), and in reprisal.
In dismissing the complaint pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim, the agency stated that unfair treatment,
favoritism and a consensual sexual relationship did not violate Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq.<1> The agency also dismissed the complaint pursuant to 29
C.F.R. �1614.107(a)(4), noting that the issues raised were the same
issues raised in a grievance which the complainant filed on July 21, 1998.
In addition, the agency dismissed reprisal as a basis on the grounds that
the complainant had failed to prosecute. See 29 C.F.R. 1614.107(a)(7).
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides that an agency
may dismiss a complaint that fails to state a claim under � 1614.103
or � 1614.106(a). EEOC Regulation 29 C.F.R. �1614.107(a)(4) provides
that an agency may dismiss a complaint, or portion thereof, where the
complainant has raised the matter in a negotiated grievance procedure
that permits allegations of discrimination. EEOC Regulation 29
C.F.R. �1614.107(a)(7) provides for the dismissal 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. The regulation further provides that, instead of dismissing
for failure to cooperate, the complaint may be adjudicated if sufficient
information for that purpose is available.
The Commission first finds that the agency's dismissal of the complaint
on the grounds of failure to state a claim is improper. The complainant
is aggrieved because promotions and awards are clearly terms, conditions
and privileges of employment. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
Regarding the agency's dismissal pursuant to 29 C.F.R. � 1614.107(a)(4),
the Commission cannot so find. The agency failed to submit a copy of the
collective bargaining agreement so that the Commission could determine
whether there exists a collective bargaining agreement which pertains
to the complainant and which permits allegations of discrimination.
The excerpt from what appears to be agency regulations concerning the
agency procedure for the negotiated grievance process is an inadequate
substitute for the collective bargaining agreement.
The Commission further finds that the agency's dismissal of reprisal as a
basis of the complaint pursuant to 29 C.F.R. �1614.107(a)(7) was improper.
The record reveals that the agency sent a request to the complainant
in November 1998 and December 1998 asking her to provide information
concerning the protected activity in which she had engaged since
the complainant had identified reprisal as a basis in her complaint.
The letter informed the complainant that if she failed to provide the
requested information within 15 days, her complaint would be dismissed.
Both requests were sent by certified mail to the complainant's address
of record. Both requests were returned as unclaimed. The record
also reflects that in a January 8, 1999 letter, hand-delivered to the
complainant on the same date, the complainant was requested by the agency
to provide the information regarding the protected activity within 15
calendar days or her complaint would be dismissed. The record reveals
that the complainant failed to provide the requested information.
The agency issued its final decision on February 5, 1999. Based on
the foregoing, the Commission cannot find that the complainant has
engaged in contumacious conduct. See Card v. U. S. Postal Service, EEOC
Request No. 05970095 (April 23, 1998). The information requested can be
obtained during the further processing of the complaint.<2> Moroever,
the Commission has held that the basis of discrimination (e.g., race,
age, disability) can be changed or added during the complaint process.
See Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462 (5th Cir. 1970);
Davenport v. Department of the Treasury, EEOC Request No. 05940631
(February 2, 1995). The Commission also notes that we have held that
an agency improperly addressed the merits of the complainant's complaint
in a procedural decision when it dismissed the basis of reprisal on the
grounds that the record did not show that the complainant had previously
engaged in EEO activity. See Botteicher v. U.S. Postal Service, EEOC
Request No. 05980627 (September 8, 1998).
Based on the foregoing, the agency's final decision is REVERSED.
ORDER (E0400)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 letter of acknowledgment to complainant 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
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:
May 11, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The complainant is advised that failure to cooperate in the continued
processing of her complaint can result in a dismissal.