01984397
06-23-1999
Claire M. Castellano, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, (Coast Guard), Agency.
Claire M. Castellano v. Department of Transportation
01984397
June 23, 1999
Claire M. Castellano, )
Appellant, )
)
v. ) Appeal No. 01984397
) Agency No. DOT-2-98-2057
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
(Coast Guard), )
Agency. )
______________________________)
DECISION
For the reasons that follow, the Commission sets aside the agency's April
3, 1998 final decision (FAD), which dismissed appellant's February 18,
1998 formal EEO complaint for untimely EEO Counselor contact. See 29
C.F.R. �1614.107(b). We are not persuaded by the agency's response to
appellant's May 4, 1998 appeal<1> to persuade us to the contrary.
We find, from our review of the entire record, as well as the arguments
on appeal<2> including those not expressly addressed herein, that the
agency has not met its burden of providing evidence sufficient to sustain
a timeliness determination Guy, Jr. v. Department of Energy, EEOC Request
No. 05930703 (January 4, 1994). We further find that the agency has not
properly defined appellant's complaint. Smith v. U.S. Postal Service,
EEOC Request No. 05921017 (April 15, 1993). We further find in the
present case, for example, that appellant has attempted to raise a claim
of constructive discharge apparently claiming she was subjected to such
harassment that she was compelled to leave the agency and take a position
with another agency: the Navy.
In addition, we find the agency has not met its burden of providing
a clear record with sufficient evidence to support the FAD. Hines
v. U.S. Postal Service, EEOC Appeal No. 01923566 (May 13, 1993); EEO
Management Directive (MD) 110 (October 22, 1992), Ch. 5, �VIII (A);
Henry v. U.S. Postal Service, EEOC Request No. 05940897 (May 18, 1995).
We find, for example, in the present case, that although the agency
has determined appellant's EEO Counselor contact to have occurred by
correspondence dated August 24, 1997, it appears that document was not
included in the complaint file transmitted to the Commission in this
matter. Furthermore, we find a statement in the record by appellant
that she attempted to contact an EEO Counselor in early May 1997. In this
regard we find record evidence to show that appellant sent correspondence
by certified mail date stamped May 8, 1997, to a named individual at the
agency's EEO Office, which correspondence, it appears, may have made at
least some of her allegations timely. However, we find no evidence as
to the contents of the correspondence or receipt by the agency.
The FAD is hereby VACATED, and this matter is hereby REMANDED for further
processing consistent with this decision and applicable regulations.
The parties are advised that this decision is not a decision on the
merits of appellant's February 18, 1998 complaint. The agency shall
comply with the Commission's ORDER set forth below.
ORDER
The agency is ORDERED to take the following actions:
1. Schedule in writing a meeting between appellant and an EEO Counselor
so an agreement can be reached on the issues in appellant's February 18,
1998 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 her February 18, 1998 complaint.
Although appellant shall be permitted to clarify her allegations,
she shall not be permitted to raise new allegations pertaining to her
complaint.
2. Ensure, with regard to the February 18, 1998 complaint, that appellant
identifies in detail the facts of each and every allegation, with relevant
dates of occurrence; bases of discrimination; and names and titles of
persons who allegedly discriminated against her. Appellant shall also
distinguish those allegations she intends to be "live" allegations
from those allegations intended to be background evidence in support
of "live" allegations. In addition, appellant shall provide objective
evidence of compensatory damages, as she has requested in this case,
and the connection, if any, between the compensatory damages and the
alleged discrimination, upon request by the agency.
3. Ensure that all abbreviations are spelled out, and that all agency
terms of art are explained, when and where used, particularly within
the context of the present matter.
4. Ensure that appellant's position, at the time this matter arose,
is clearly and specifically identified, including the applicable unit,
branch, or division that employed appellant at the time this matter
arose, with relevant dates of employment, including her last date
in pay status prior to her employment with the Navy. In addition,
the agency shall ensure that all relevant and necessary documents
pertaining to this case are produced and that they are complete, legible,
and identified, including, but not limited to, evidence pertaining
to appellant's initial EEO contact. In this regard, the agency shall
obtain statements under oath or affirmation from appellant, as well as
from other relevant personnel with personal knowledge of this matter,
pertaining to appellant's initial EEO contact.
5. If an agreement cannot be reached on a definition of the issues in
appellant's complaint, then the agency shall issue a new final agency
decision (FAD) defining the complaint. Such a FAD 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.
6. 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 FAD doing so. Such a FAD must
list all allegations being dismissed and provide the legal grounds for
dismissal, as well as facts and documents relied upon. In this regard,
the agency shall again ensure that all relevant, as well as referenced,
documents are produced and made a part of the record in this case. The
agency shall issue but one FAD in this matter and that FAD shall identify
all issues to he adjudicated in appellant's complaint, including those
issues the agency is dismissing if any. The FAD shall also contain
appeal rights to the Commission.
7. The agency shall complete all the above actions, including the
issuance of the Counselor's report and FAD if there is disagreement as
to the issues in appellant's complaint and/or if the agency dismisses
appellant's complaint in whole or in part, within ninety (90) calendar
days of the date the Commission's decision becomes final in this matter.
8. 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 FAD issued
pursuant to instruction 6 above 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:
June 23, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The record shows appellant received the FAD in this matter on April 9,
1998. Therefore, appellant's appeal is timely. See 29 C.F.R. ��1614.402
and .604, in relevant parts.
2The Commission has not considered several post-appeal filings by
appellant because they were untimely. See 29 C.F.R. �1614.403(d).