01A34690
12-01-2003
Jacqueline L. D'Agostino v. Department of the Navy
01A34690
December 1, 2003
.
Jacqueline L. D'Agostino,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A34690
Agency No. 01-32960-001
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final order dismissing her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
In her complaint, complainant alleged that she was discriminated against
on the bases of sex (female) and age (D.O.B. November 19, 1953) when:
Complainant's job duties were significantly changed without her
knowledge, her supervisory duties were redistributed to other MWR staff
members, and the MWR Director favored an overhaul of the MWR Department
with a younger management team in control; and,
Complainant was shunned at work, fellow staff members were encouraged
to inform the immediate supervisor of any comments made by complainant,
and the supervisor informed complainant that he was keeping a �book�
on record.<1>
Complainant initially requested a hearing on her EEO complaint;
however, on June 16, 2003, complainant submitted a letter to the EEOC
Administrative Judge (AJ) expressing her intent to file a civil action on
the matters raised in her complaint. On June 18, 2003, the AJ dismissed
the case because he considered complainant's letter to be a withdrawal
of her hearing request, and he remanded the complaint to the agency.
In the agency's final order, the agency dismissed complainant's complaint
pursuant to 29 C.F.R. � 1614.107(a)(3), because the agency believed that
complainant intended to file a civil action in a United States District
Court regarding the matters raised in her EEO complaint. On appeal,
complainant indicates that she did not file a civil action in connection
with her complaint.
The Commission finds that although the AJ properly considered
complainant's July 16, 2003 letter regarding her intent to file a civil
action to be a withdrawal of her hearing request, the agency improperly
dismissed complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(3).
There is no evidence in the record to support a finding that complainant
actually filed a civil action; therefore, we REVERSE the agency's
procedural dismissal of the complaint, and REMAND the complaint to the
agency for further processing in accordance with this decision and the
Order below.
ORDER
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. Part 1614. The agency shall acknowledge to complainant that
it has received the remanded claims within thirty (30) calendar days of
the date this decision becomes final. The agency shall issue a final
decision to complainant within sixty (60) calendar days of the date this
decision becomes final.
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.
The agency may achieve compliance by providing the Compliance Officer and
complainant with a copy of the agency's final decision on the remanded
claims. 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
December 1, 2003
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1In her complaint, complainant indicates that her perceived sexual
orientation also motivated the agency's actions. The Commission has
no jurisdiction over such claims because sexual orientation is not a
protected basis under any of the statutes enforced by the Commission.
See, e.g., Yost v. United States Postal Service, EEOC Request No. 05970940
(October 2, 1997).