copy of 0120072244
09-17-2007
Lisa D. Marsh, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Lisa D. Marsh,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120072244
Agency No. 07-67400-00456
DECISION
Complainant filed a timely appeal with this Commission from the final agency decision dated March 5, 2007, dismissing her formal 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.
In February 2007, complainant filed a formal EEO complaint. Therein, complainant alleged that she was subjected to discrimination in reprisal for prior protected EEO activity.
In its final agency decision, dated March 5, 2007, the agency dismissed complainant's complaint. Specifically, the agency stated that "[t]he claims you brought to the attention of the EEO Counselor alleged retaliation based on prior involvement in EEO protected activity when you did not receive a performance award on [December 26, 2006]. [Your formal complaint] does not address the claims brought to the attention of the EEO Counselor."
On appeal, complainant, through her attorney, asserts that the agency's final decision dismissing her complaint is improper. Specifically, complainant asserts that she did raise the issue of being denied a performance award with an EEO Counselor and in her formal complaint.
The Commission finds that the agency improperly dismissed complainant's complaint. The record contains a copy of the EEO Counselor's Report. Therein, the EEO Counselor states that "the primary issue is that [complainant] did not receive a performance award for FY 2006. She discovered this information [in December]...2006." The Commission acknowledges that complainant made reference to additional alleged incidents in section 9 of her formal complaint, such as being denied a reassignment.1 However, in section 7 of her formal complaint, complainant lists the basis of reprisal and states "[December 26, 2006], I did not receive a performance award in retaliation for my EEO activity." In addition, in section 6, complainant states that the alleged discriminatory incident occurred on December 26, 2006. We find that a fair reading of the record reflects that complainant raised the issue of being denied a performance award in her formal complaint, based on section 7, and that the EEO Counselor's Report reflects that complainant received EEO counseling on this matter.
Accordingly, we REVERSE the agency's final decision dismissing complainant's complaint and we REMAND this matter to the agency for further processing in accordance with the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. 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 (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the complainant requests a final decision without a hearing, the agency shall issue a final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (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 (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
9/17/2007
Date
1 The Commission notes that complainant does not specifically raise these additional alleged incidents on appeal; thus, we will not address these incidents herein. EEO Management Directive 110, Chapter 9, IV, A (November 9, 1999).
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0120072244
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120072244