01986513
09-14-1999
Elba D. Acuna, Appellant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Elba D. Acuna v. Department of Justice
01986513
September 14, 1999
Elba D. Acuna, )
Appellant, )
)
v. ) Appeal No. 01986513
) Agency No. F-97-5076
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
_________________________________)
DECISION
Appellant filed the instant appeal from the agency's decision dated July
24, 1998 dismissing appellant's complaint for failing to state a claim
pursuant to 29 C.F.R. �1614.107(a). In the complaint appellant alleged
that she was harassed when electronic communications (ECs) dated July 1,
1997 and August 13, 1997 were written about appellant which reflected
negatively on appellant's performance. The agency found that the ECs did
not result in any harm to appellant. On appeal the agency also argues
that the matter was settled in an agreement entered into on April 6,
1999.
Settlement Agreement
The April 6, 1999 settlement agreement between appellant and the agency
resolved F-96-4869 which is not the present case. Paragraph Four of
the agreement provides that appellant,
agrees to forebear any right she may now possess to reinstitute or
initiate any future claims or proceedings before the EEOC and/or the
U.S. Department of Justice involving the same allegations or subject
matter of the above-captioned Complaint . . .
The settlement agreement states that the complaint in F-96-4869 was
filed on September 21, 1996. The issues accepted for investigation in
F-96-4869 concern incidents in August 1996. The incidents in the instant
complaint occurred in July and August 1997 and were not part of F-96-4869.
Furthermore, although the instant complaint concerns allegations of
harassment apparently by the same agency official as in F-96-4869,
appellant did not (and could not) prospectively waive appellant's
right to file a discrimination complaint concerning future alleged
discriminatory acts. Therefore, we find that the instant allegations
were not settled in the April 6, 1999 settlement agreement.
Failure to State a Claim
The record is not clear as to whether the ECs are part of any official
agency files regarding appellant. If the ECs are maintained by the
agency in an official file and if the ECs negatively reflect on appellant,
then appellant may be aggrieved. The Commission shall remand the matter
so the agency can supplement the record with affidavits from appropriate
agency officials indicating whether the ECs at issue are kept in official
agency files regarding appellant.
The agency's decision dismissing the complaint is VACATED and we REMAND
the complaint to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
The agency shall supplement the record with affidavits from appropriate
agency officials indicating whether the ECs at issue are kept in
official agency files regarding appellant. Within 60 days of the
date this decision becomes final the agency shall issue a letter to
appellant accepting the complaint for investigation or issue a new
decision dismissing the complaint. A copy of the letter accepting the
complaint or new decision dismissing the complaint must be sent to the
Compliance Officer as 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� (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. �1614.604(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:
September 14, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations