01982136_r
06-15-1999
Joyce Soule, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Joyce Soule, )
Appellant, )
)
v. ) Appeal No. 01982136
) Agency No. 97-39828-001
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
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. The final agency decision was issued on January
13, 1998. The appeal was postmarked January 22, 1998. Accordingly,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue presented on appeal is whether the agency properly dismissed
an allegation of appellant's complaint on the grounds that the allegation
raised a matter that was not brought to the attention of an EEO Counselor
and is not like or related to a matter that has been brought to the
attention of an EEO Counselor.
BACKGROUND
Appellant initiated contact with an EEO Counselor on January 29, 1997,
with regard to her receipt of a Letter of Caution on January 27, 1997.
In a memorandum dated March 7, 1997, appellant stated in part that she
had been placed in a position to fail and not be promoted. Appellant
indicated that a white employee was placed in a position to prevent her
from being promoted. Appellant stated that responsibilities are taken
away or blacks are transferred to another area when management determines
there is a chance for a black to be promoted. According to the EEO
Counselor's report, appellant decided during informal EEO counseling
that the aforementioned matter raised in her memorandum dated March 7,
1997, would not be an allegation of her complaint, but rather background
information. On March 20, 1997, appellant filed a formal EEO complaint
wherein she alleged that she had been discriminated against on the
bases of her race (black), color (dark tone skin) and in reprisal for
her previous EEO activity when she was issued a Letter of Caution on
January 27, 1997.
Subsequent to the filing of the formal complaint, appellant stated in
a letter to the agency dated August 23, 1997, that the agency's notice
of acceptance had misstated the issues in her complaint. In a letter to
the agency dated September 24, 1997, appellant stated that she agreed to
settle her previous complaint based on an agency promise that she would
receive one of the GS-13 positions once the Command had been restructured
and an overall organizational philosophy had been established. Appellant
stated that she had applied for numerous positions for which she is
qualified. A meeting was held between appellant and the EEO Office
on December 22, 1997, to clarify the issues in the instant complaint.
Based on that meeting, appellant's complaint was amended to reflect the
following allegations:
1. She was issued a Letter of Caution on January 27, 1997.
2. Her project was sabotaged by the delay of her software maintenance
release in response to her e-mail message of January 13, 1997.
3. She was denied promotions since the settlement of her previous EEO
complaint on July 26, 1995.
In its final decision, the agency dismissed allegation 3 of appellant's
complaint on the grounds that appellant raised a matter that was not
brought to the attention of an EEO Counselor and the matter is not like or
related to a matter that was brought to the attention of an EEO Counselor.
Allegations 1 and 2 were accepted for investigation.
On appeal, appellant argues that she raised the issue of her not being
promoted with the EEO Counselor in her memorandum dated March 7, 1997,
prior to the final interview.
In response, the agency asserts that appellant's formal complaint did
not identify non-promotion as an issue, and that appellant had indicated
in discussions with the EEO Counselor that she raised the issue only
as background information. The agency notes that since its dismissal
of allegation 3, appellant has sought EEO counseling with regard to
this issue. The agency states that appellant also raised this issue in
a letter dated September 24, 1997, wherein she claimed that the agency
failed to comply with the settlement agreement dated July 26, 1995.
According to the agency, the Director responded to appellant by final
decision dated January 29, 1998, that the settlement agreement did not
promise her a GS-13 position, and therefore there was no violation of
the agreement. The agency noted that appellant received that decision
after she submitted the instant appeal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(b) provides in relevant part that
the agency shall dismiss a complaint or a portion of a complaint that
raises a matter that has not been brought to the attention of an EEO
Counselor and is not like or related to a matter that has been brought
to the attention of an EEO Counselor.
Upon review of the record, we note that the EEO Counselor's report
states that on March 21, 1997, appellant informed the EEO Counselor
that she wished to proceed with regard to the Letter of Caution, but
that the additional information raised in her letter of March 7, 1997,
should be considered background material. It appears that at the time
she filed her formal complaint, appellant did not intend to include her
non-promotions as an allegation of her complaint. However, given that
this allegation was eventually included as part of the complaint after
the issues of the complaint were clarified, we must address whether
the allegation was properly dismissed. We find that it is clear that
appellant raised the issue of her non-promotions with an EEO Counselor
during the informal counseling process in March 1997; consequently,
the agency was on notice that appellant disputed the agency's failure
to promote her. Accordingly, the agency's dismissal of allegation 3
on the grounds that appellant failed to raise the issue with the EEO
Counselor was improper and is REVERSED. Allegation 3 is hereby REMANDED
for further processing in accordance with the ORDER below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation (Allegation 3)
in accordance with 29 C.F.R. �1614.108. The agency shall acknowledge to
the appellant that it has received the remanded allegation (Allegation 3)
within thirty (30) calendar days of the date this decision becomes final.
The agency shall issue to appellant a copy of the investigative file and
also shall notify appellant of the appropriate rights within one hundred
fifty (150) calendar days of the date this decision becomes final, unless
the matter is otherwise resolved prior to that time. If the appellant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
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. �1614.604(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:
June 15, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations