01A15357r
07-11-2002
Debra Phillips, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Debra Phillips v. Department of Justice
01A15357
July 11, 2002
.
Debra Phillips,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A15357
Agency No. I-01-WO37
DECISION
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), on the basis
that it raises matters that have not been brought to the attention of
an EEO counselor.
The record discloses that on January 16, 2001, complainant filed an EEO
complaint alleging that she was discriminated against based on her race,
sex and reprisal when:
1. On September 19, 2000, she was verbally assaulted by
a supervisor.
2. On December 30, 2000, she was informed by her supervisor
that he was serving her
with her final annual performance work plan.
The agency dismissed the complaint on the grounds that complainant did
not first contact an EEO counselor before filing her complaint. The
agency stated that the agency sent a letter on October 18, 2000, in
response to complainant's memo dated September 26, 2000, directing her
to contact an EEO counselor within 45 days of the matter alleged to be
discriminatory. According to the agency, complainant did not contact an
EEO Counselor, but simply filed a complaint.
On appeal, complainant, through her attorney, argues that she was unaware
of the EEO process and initially contacted her supervisor rather than
an EEO Counselor. After receiving the agency's letter, complainant
contends that she immediately tried to contact an EEO Counselor.
On October 23, 2000, complainant argues, she contacted an EEO Counselor
(Counselor A), whose name was on the agency's list of EEO Counselors.
According to complainant, she met with the EEO Counselor on October 23,
2000, for four hours in the Federal Building at 300 N. Los Angeles Street.
She asserts that the EEO Counselor told her that she would get back to
her, but never did.
Complainant explains that she assumed that her complaint was being
investigated. At the end of the year, when complainant called the EEO
office to find out the status of the investigation, she was told that
the counselor was on vacation. Complainant states that she called again
on January 3, 2001, and the counselor told her that she could not
process the complaint because the counselor was a supervisor and that
she would have to talk to her supervisor. Next, complainant contends,
she called the EEO hot line in Washington, D.C. and was told that her
complaint could be processed by a counselor that was a supervisor. On
January 9, 2001, complainant claims she contacted two other counselors
listed in the agency's list of EEO counselors (counselors B and C) and
was told that they were not available to assist her. Complainant claims
that she then contacted the supervisor to Counselor A, and was told that
Counselor A would process her complaint and meet with her. On January
22, 2001, complainant met with Counselor A, filled out some documents
and was told that her complaint would be taken care of.
The agency did not offer any comments or rebut complainant's claim that
she vigorously tried to contact the counselors listed in the agency's
list of the EEO counselors with specific names and dates of the contacts.
Therefore, based on a careful review of the record, we find that the
agency's dismissal of the complaint was improper.
Because the agency claims that complainant did not receive EEO counseling
concerning her claims we shall order the agency to provide EEO counseling
to complainant concerning her claims. Accordingly, the final agency
decision to dismiss the complaint is REVERSED and the complaint is
REMANDED for further processing as ordered below.
ORDER
The agency is ordered to provide EEO counseling concerning complainant's
claims. Complainant shall not be required to refile her complaint
regarding these claims. Thereafter, the agency is ORDERED to process
the remanded claims in accordance with 29 C.F.R. � 1614.108. The agency
shall acknowledge to the complainant that it has received the remanded
claims and notify her of the opportunity to obtain EEO counseling within
thirty (30) calendar days of the date this decision becomes final.
A copy of the agency's letter of acknowledgment and notice of opportunity
for counseling 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 11, 2002
______________
Date