01A24623_r
09-29-2003
Iris Wesselhoft, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Iris Wesselhoft v. Department of the Army
01A24623
September 29, 2003
.
Iris Wesselhoft,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A24623
DECISION
Complainant appeals from the agency's August 16, 2002 decision dismissing
complainant's complaint. Complainant alleges discrimination on the
bases of race and national origin when:
she was not selected for the following positions:
a. Duty Manager (1995)
b. Supply Technician (1996)
c. Building Inspector (1998)
d. Administrative Assistant (1999)
e. Security Guard (2001)
f. Administrative Assistant (2001); and
during October 2000, Ms. X and Ms. Y along with other co-workers asked
her where she is from, how she came to Kansas, whether she needed a
green card, whether he children are Black and where her husband is from.
The agency dismissed complainant's complaint for untimely EEO Counselor
contact pursuant to 29 C.F.R. � 1614.107(a)(2). The agency does not
indicate, in the decision, when complainant initiated contact with an
EEO Counselor. Further, the record is devoid of an EEO Counselor's
Report, which might contain the contact date. However, the agency by
brief on appeal, and without citation, states that complaint contacted
an EEO Counselor on July 8, 2002, beyond the 45-day limitation period.
Complainant, on appeal, appears to raise the issue of a claim that
was not addressed in the decision, but was raised in her complaint.
Specifically, complainant claims that she was discriminated against when
she did not receive the position of Procurement Clerk. She argues that
she learned in 2002, that the position was given to someone else. She
argues that the position was not posted and she never had an opportunity
to apply for the position.
The record contains a letter from complainant dated August 22, 2002,
stating that she brought all of her claims to person Z in March 2001.
Complainant argues that person Z gave her papers to fill out and turn in,
which she did. She argues that she called several times to follow up
on the papers she submitted. She indicates that she spoke to the EEO
secretary a couple of times who told her that person Z was on leave.
Complainant states that a couple days after July 6, 2002, person Z
assigned her an EEO Counselor.
The record further contains two pre-complaint counseling forms, with the
same above referenced claims. The first pre-complaint indicates that
complainant's date of contact with the EEO office was March 12, 2001.
The second pre-complaint indicates that complainant had contact with
the EEO office on March 12, 2001, and July 2 (year omitted).
Finally, the record contains a memorandum from the Executive Assistant
dated October 10, 2002. The memorandum states that "[d]uring the
month of March 2001, the aggrieved contacted the EEO office. . ."
Although the memorandum later states that the author was attempting to
find an EEO Counselor for complainant, and complainant decided not to
pursue the complaint, we find the argument unpersuasive. There is no
evidence in the file regarding the alleged contact with complainant,
the effort to find an EEO Counselor for complainant, or complainant's
alleged withdrawal of the matter.
We find that complainant initiated EEO Counselor with the intent to file
an EEO complaint on March 12, 2001. With regard to claims 1 (a) - (d),
we find that complainant should have reasonably suspected discrimination
more that 45-days prior to her contact with an EEO Counselor. Therefore,
claims 1 (a) - (d) were properly dismissed for untimely EEO Counselor
contact pursuant to 29 C.F.R. � 1614.107(a)(2). With regard to claim
2, we find that complainant's March 12, 2001 EEO Counselor contact was
beyond the 45-day limitation period.
With regard to claims 1 (e) and (f), we find the record insufficient
to determine whether complainant's March 12, 2001 EEO Counselor contact
was timely. The record is devoid as to when the positions were posted,
closed, when the selectees were selected, or when complainant was notified
of her non-selection. Therefore, claims 1 (e) and (f) must be remanded
for further processing.
Finally, we find that the agency failed to address complainant's
non-selection for the Procurement Clerk position. Such a failure to
address a claim is tantamount to a dismissal of a claim. Because
the agency did not provide a reason for dismissing this claim of
non-selection, we find such a dismissal to be improper.
The agency's decision dismissing claims 1 (a) - 1 (d) and 2 is AFFIRMED.
The agency's dismissal of claims 1 (e) and 1 (f) is VACATED and we REMAND
claims 1 (e) and 1 (f) to the agency for further processing pursuant
to the Order herein. The agency's dismissal of complainant's claim
of non-selection for the Procurement Clerk position is REVERSED and we
REMAND this claim to the agency for further processing pursuant to the
Order herein.
ORDER
The agency shall provide evidence in the record of when complainant
knew or should have known that she was not selected for the positions
of Security Guard and Administrative Assistant in 2001. Based on the
foregoing, the agency shall determine whether complainant's March 12,
2001 EEO Counselor contact was within the 45-day limitation period.
Within 30 days of the date this decision becomes final, the agency
shall issue a letter of acceptance for claims 1(e) and 1(f) or shall
notify complainant in writing of a determination and rationale for the
determination not to investigate claim 1 (e) or claim 1 (f), or both,
pursuant to 29 C.F.R. � 1614.107(b).
Within 30 days of the date this decision becomes final, the agency
shall issue a letter of acceptance for the claim of non-selection for
the Procurement Clerk position.
The claim of non-selection for the Procurement Clerk position, and any
of the other 2 claims accepted for investigation (claims 1(e) and/or
1(f)) shall be processed in accordance with 29 C.F.R. � 1614.108.
Regarding the accepted claims, the agency shall issue to complainant a
copy of the investigative file and also shall notify complainant of the
appropriate rights within one hundred fifty calendar days of the date
this decision becomes final, unless the matter is otherwise resolved
prior to that time. Regarding the accepted claims, if the complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty days of receipt of complainant's request.
A copy of the agency's acceptance letter, and, if applicable,
determination not to investigate claims 1(e) and/or 1(f), 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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
September 29, 2003
__________________
Date