01975800
04-08-1999
Gaythel M. Warren, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Gaythel M. Warren v. Department of the Army
01975800
April 8, 1999
Gaythel M. Warren, )
Appellant, )
)
v. ) Appeal No. 01975800
) Agency No. 97-FO-0003
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
___________________________________)
DECISION
Appellant filed the instant appeal from the portion of the agency's
decision dated July 1, 1997 dismissing allegation (b) from appellant's
complaint for failure to timely contact an EEO Counselor. Appellant is
not appealing the agency's dismissal of allegation (a).
The agency defined allegation (b) as follows:
[Appellant] was never given recognition for her work on the Tigertail
Indian Relocation Project, including, but not limited to her work on the
Research and Scope for the FDM-3, the Preliminary Relocation Plan for
the Tigertail Indian Relocation, the Draft of Final Planning Report for
the FDM-3, and the Replacement Housing Plan for the Tigertail Indians.
Instead, recognition went to a younger female, [Person A] (DOB: 1/10/50).
The agency found that appellant should have reasonably suspected
discrimination in 1995, but that she failed to contact an EEO Counselor
until April 25, 1997. In the "Chronology of EEO Counseling" portion
of the EEO Counselor's report, the EEO Counselor listed the initial
contact date with the EEO Office as being April 21, 1997 and the initial
contact with the counselor as being April 25, 1997. In the "Allegation of
Discrimination" portion of the EEO Counselor's report, however, the EEO
Counselor wrote regarding allegation (b): "Contact Date: Fax to EEO 21
(&25) Sep 95 and 26 Oct 95, memo signed 21 Sept 95[.]"
On appeal appellant argues that she raised allegation (b) via an
informal EEO complaint dated September 21, 1995 and a revised version
dated September 25, 1995. The record contains an informal complaint from
appellant dated September 21, 1995 which also reflects a revised date of
September 25, 1995. This informal complaint from September 1995 contains
allegation (b). On appeal the agency has not specifically refuted
appellant's claim that she raised allegation (b) in September 1995.
Nor has the agency explained why the EEO Counselor would indicate that the
contact date was September 21, 1995 for allegation (b). Appellant's claim
of contact with the EEO Office in September 1995 coupled with the portion
of the EEO Counselor's report indicating that appellant made contact with
the EEO Office on September 21, 1995, is sufficient to show that appellant
raised allegation (b) with an EEO Counselor on September 21, 1995.
The Commission, however, can not determine if allegation (b) was
timely raised because it is unclear when allegation (b) occurred and
when appellant should have reasonably suspected discrimination in
allegation (b). Therefore, we shall remand the matter so that the
agency may supplement the record with evidence showing when allegation
(b) occurred and evidence showing when appellant should have reasonably
suspected discrimination in allegation (b).
The agency's decision dismissing allegation (b) is VACATED and we REMAND
allegation (b) to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
The agency shall place evidence into the record showing when allegation
(b) occurred and evidence showing when appellant should have reasonably
suspected discrimination in allegation (b). Within 60 days of the
date this decision becomes final the agency shall either issue a letter
accepting allegation (b) for investigation or shall issue a new decision
dismissing allegation (b). A copy of the agency's letter accepting
allegation (b) for investigation or a copy of the new decision dismissing
allegation (b) shall be sent to the Compliance Officer 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(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:
April 8, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations