Jacqueline L. D'Agostino, Complainant,v.Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionDec 1, 2003
01A34690 (E.E.O.C. Dec. 1, 2003)

01A34690

12-01-2003

Jacqueline L. D'Agostino, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.


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).