0420100014
09-21-2010
Karen G. Mills, Administrator, Small Business Administration, Petitioner. Petition No. 0420100014 Appeal No. 0120080844 Agency No. 1008006
Deborah K. Gunn,
Complainant,
v.
Karen G. Mills,
Administrator,
Small Business Administration,
Petitioner.
Petition No. 0420100014
Appeal No. 0120080844
Agency No. 1008006
DECISION ON A PETITION FOR CLARIFICATION
On June 21, 2010, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for clarification by the Small Business Administration ("Petitioner") of an Order set forth in Deborah K. Gunn v. Small Business Administration, Appeal No. 0120080844 (April 23, 2010). The Commission accepts this petition for clarification pursuant to 29 C.F.R. � 1614.503.
Complainant filed a timely appeal with this Commission from the Agency's letter dated November 16, 2007, closing her informal complaint of unlawful employment discrimination. In her informal complaint, Complainant, an attorney in the agency's Office of General Counsel (OGC), alleged that she was subjected to discrimination and a hostile work environment on the basis of her religion. In closing Complainant's informal complaint, which had been initiated on March 9, 2005, the Petitioner wrote:
...we find that you should have contacted the Office of EEO&CRC to inquire about the status of your informal complaint as early as the 30th day after contact with the EEO Counselor (April 8, 2005) when you did not receive a notice terminating counseling. However, you did not contact this office until October 5, 2007, more than 2 years after your initial contact in March 2005. At no time during your October 2007 contact did you provide a reasonable explanation for your 2-year delay in pursuing allegations raised in March 2005.1
In Gunn, EEOC Appeal No. 0120080844, the Commission reversed the Petitioner's closing of Complainant's informal complaint, and ordered the Petitioner to process the remanded claim in accordance with 29 C.F.R. � 1614.108.
On June 10, 2010, the Petitioner requested clarification of our Order in Gunn, EEOC Appeal No. 0120080844. Specifically, Petitioner asserts: "We are requesting clarification on EEOC's decision for the agency to investigate the case, especially in light of the fact that Complainant's allegations do not include any issues specific to her." According to the Petitioner, "Complainant asserts that things happened to others (treatment of her co-workers, both positive and negative). She has not alleged that a specific adverse action was taken against her. A central requirement in the filing of a complaint of discrimination is that Complainant be subjected to an adverse action; something has to have happened to the Complainant. Petitioner further states: "Therefore, we are requesting EEOC's review of the decision and further guidance on processing the remanded case (i.e., sending Complainant back to a counselor to articulate how she's affected). We are also requesting a 90 day extension from date of receipt of your case review decision."
ANALYSIS AND FINDINGS
The Commission's regulations provide that the Office of Federal Operations may, on its own motion or in response to a petition for enforcement or in connection with a timely request for reconsideration, issue a clarification of a prior decision. A clarification cannot change the result of a prior decision or enlarge or diminish the relief ordered, but may further explain the meaning and intent of the prior decision. 29 C.F.R. � 1614.503(c).
The Commission's previous decision correctly reversed the Petitioner's closing of Complainant's informal complaint. The intent of the previous decision was that Complainant's allegations of discrimination be remanded to the Petitioner for appropriate processing in accordance with our regulations. Because the Petitioner did not proceed with Complainant's pre-complaint processing in November 2007, Complainant was never provided a notice of final interview, pursuant to 29 C.F.R. � 1614.105(d), nor was she able to file a formal complaint of discrimination against the Petitioner outlining her specific claims. Therefore, in accordance with the intent of the previous decision, we are remanding this matter back to the Petitioner who will comply with the Order below.2
CONCLUSION
Based upon a review of the record, the Commission grants the petition for clarification.
ORDER
The Petitioner, within fifteen days of its receipt of this decision, shall schedule a Final Interview with Complainant pursuant to 29 C.F.R. � 1614.105 (d).
A copy of the Petitioner's letter to Complainant scheduling the Final Interview, and a copy of the Notice of Final Interview must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
___9/21/10_______________
Date
1 The sole basis for the Petitioner's decision to close the informal complaint was its contention that Complainant failed to pursue her informal complaint for a period of more than two years.
2 Given the above disposition, we do not find it necessary to address that Petitioner's request that it be given a 90 day extension to investigate Complainant's claim.
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0420100014
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0420100014