01982887
03-02-1999
Fran J. Wolf, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Fran J. Wolf v. Department of Agriculture
01982887
March 2, 1999
Fran J. Wolf, )
Appellant, )
)
v. ) Appeal No. 01982887
) Agency No. 960220
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. and, the Age Discrimination in Employment Act
of 1967, as amended, 29 U.S.C. �621 et seq. The agency was unable to
supply a copy of a certified mail return receipt or any other material
capable of establishing the date appellant received the agency's final
decision. Accordingly, since the agency failed to submit evidence of
the date of receipt, the Commission presumes that appellant's appeal was
filed within thirty (30) days of receipt of the agency's final decision.
See, 29 C.F.R. �1614.402.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint.
BACKGROUND
Appellant contacted an EEO counselor on January 2, 1996, regarding
allegations of discrimination. Specifically, appellant alleged that
she was discriminated against when the agency failed to timely process a
previously filed discrimination complaint. Informal efforts to resolve
appellant's concerns were unsuccessful. Accordingly, on February 21,
1996, appellant filed a formal complaint alleging that she was the victim
of unlawful employment discrimination on the bases of sex (female),
reprisal (prior EEO
activity), and age (unspecified). Appellant's formal complaint also
alleged that the agency had discriminated against her with respect to
discipline and working conditions. Appellant's complaint failed to
include specific examples regarding her allegations.
On January 30, 1998, the agency issued a final decision dismissing
appellant's complaint on the grounds that appellant's allegation
concerning the processing of her previous complaint failed to state a
claim, and that appellant's allegations concerning discipline and working
conditions had not been brought to the attention of an EEO Counselor.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(b) states, in pertinent part, that
an agency shall dismiss a complaint or portion thereof which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling. A later allegation or complaint is "like or related"
to the original complaint if the later allegation or complaint adds
to or clarifies the original complaint and could have reasonably been
expected to grow out of the original complaint during the investigation.
See Calhoun v. United States Postal Service, EEOC Request No. 05891068
(March 8, 1990); Webber v. Department of Health and Human Services,
EEOC Appeal No. 01900902 (February 28, 1990).
Upon review of the record herein, including appellant's initial
complaint intake form, her formal complaint, and the report of the
EEO Counselor, the Commission determines that appellant's allegations
concerning discipline and working conditions were not brought to the
attention of an EEO Counselor and are not like or related to a matter
brought to the attention of a counselor. The agency's dismissal of the
allegations was proper pursuant to 29 C.F.R. �1614.107(b). On appeal,
appellant has failed to present any persuasive evidence to contradict
the agency's decision.
We determine further that the agency's dismissal of appellant's allegation
concerning the processing of her complaint was proper.
The Commission has held that an allegation which relates to the processing
of a previously filed complaint does not state an independent allegation
of employment discrimination. See Kleinman v. U.S. Postal Service,
EEOC Request No. 05940579 (September 22, 1994); Story v. U.S. Postal
Service, EEOC Appeal No. 01965883 (March 13, 1997). If a complainant
is dissatisfied with the processing of her pending complaint, she
should be referred to the agency official responsible for the quality
of complaints processing. Agency officials should earnestly attempt
to resolve dissatisfaction with the complaints process as early and
expeditiously as possible. See EEO MD 110 (4-8). Furthermore, given
the nature of appellant's allegations of improper processing, we find
that the proper method for addressing such matters would be within the
continued processing of the previously filed complaint or on appeal from
the final agency decision issued therein. Any remedial relief to which
appellant would be entitled would necessarily involve the processing of
the underlying complaint. Consequently, the agency properly dismissed
appellant's complaint pursuant to 29 C.F.R. �1614.107(a).
CONCLUSION
Accordingly, the agency's decision dismissing appellant's complaint is
hereby AFFIRMED for the reasons set forth herein.
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 (S0993)
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:
March 2, 1999 Ronnie Blumenthal
DATE Director
Office of Federal Operations