Lissa A. James-Brewington, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionApr 14, 1999
01974707 (E.E.O.C. Apr. 14, 1999)

01974707

04-14-1999

Lissa A. James-Brewington, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Lissa A. James-Brewington v. Department of the Army

01974708

April 14, 1999

Lissa A. James-Brewington, )

Appellant, )

)

v. ) Appeal Nos. 01974707, 01974708

) Agency No. BGANFO9608G0400

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

)

DECISION

The appellant timely filed appeals with this Commission from final

decisions, dated October 17, 1996, and January 21, 1997, which the

agency issued pursuant to EEOC Regulation 29 C.F.R. �1614.107(a) and

(b). The Commission accepts the appellant's appeal in accordance with

EEOC Order No. 960, as amended.

The agency issued the subject decisions prior to the issuance of

a Commission decision on the same complaint, James-Brewington v.

Department of the Army, EEOC Appeal No. 01970009 (December 10, 1997).

The Commission upheld the dismissal of allegation 2 on the ground that

it did not state an actionable claim. However, the Commission noted

that the agency was required to investigate whether allegations 1 and 3

were motivated by discrimination based on color, sex and reprisal for

prior EEO activity. Neither party requested reconsideration of the

Commission's decision.

In the decisions at issue in this appeal, the agency identified

allegations 1 and 3 with more particularity after requesting such

information from the appellant. The agency accepted allegation 3(a)

for investigation and dismissed allegations 1(a) and 1(b), 3(b), 3(d)

through 3(g), and 3(i) for untimely EEO counselor contact. The agency

neither accepted nor dismissed allegation 3(c). The agency dismissed

allegations 3(b), 3(d), and 3(e) on additional grounds. The agency found

that allegation 3(b) did not allege discrimination on a basis covered by

the EEO statutes. The agency found that the appellant had not provided

sufficient information to continue processing allegations 3(d) and 3(e)

even after the agency had requested additional information pursuant to

29 C.F.R. �1614.107(g).

After a review of the three appeal files for the subject complaint,

it is the decision of the Commission to affirm the agency in part and

to reverse the agency in part.

The Commission affirms the agency's dismissal of allegations 1(a), 1(b),

3(b), 3(e), and 3(f), albeit for a different reason than those stated

in the agency's decisions. The Commission finds that these allegations

do not state independent claims regarding the terms, conditions, and

privileges of the appellant's employment. Allegations 1(a) and 1(b)

concern the EEO process and should be raised with the agency official

who is responsible for the EEO process. Allegation 3(b) concerns a

union matter which is not properly the subject of an EEO complaint.

Allegation 3(e) concerns a threat to take disciplinary action but does

not involve an actual change in the terms, conditions or privileges

of the appellant's employment. The lone remark that is the subject of

allegation 3(f), even when viewed together with allegation 3(e), is not

sufficient, without more, to state a hostile work environment claim.

The Commission also affirms the agency's dismissal of allegation 3(d)

for untimeliness, albeit based on the date the appellant first contacted

the agency's EEO Office, April 26, 1996, rather than on the date the

appellant provided additional information on the allegation.

Allegation 3(i) states a claim of discrimination in the terms and

conditions of the appellant's employment based on color, sex and

reprisal for prior EEO activity. Therefore, the Commission finds that

allegation 3(i) states a claim which is suitable for processing under 29

C.F.R. Part 1614. The Commission also finds that the appellant timely

raised this allegation in that the appellant alleged that the GS-6

work assignments had been ongoing since March 25, 1996. Accordingly,

the Commission reverses the agency's dismissal of allegation 3(i).

The Commission finds that allegation 3(g) appears to be related to

the allegation 3(a) and should be investigated as part of that claim

rather than as a separate claim. Therefore, the Commission reverses

the dismissal of allegation 3(g).

The Commission observes that the agency did not state whether it

was accepting or dismissing allegation 3(c). The Commission finds

insufficient information in the record to justify dismissal. Accordingly,

the Commission reverses the agency's implicit dismissal of allegation

3(c).

The Commission further observes that the agency issued three final agency

decisions dismissing allegations raised in one complaint. This has

caused unnecessary and wasteful expenditures of time and effort by

the agency, the appellant, and the Commission which easily could have

been prevented. The EEO counselor could have assisted the appellant

in defining her allegations with specificity. The agency also could

have requested additional information from the appellant in a letter

which satisfied all of the requirements of 29 C.F.R. �1614.107(g).

Only then should the agency have issued one final decision dismissing

allegations 1(a), 1(b), 3(b), 3(d), 3(e), and 3(f). The Commission

reminds the agency that it is required to ensure that its EEO Program,

including its complaint processing operations, are operated efficiently.

29 C.F.R. �1614.102(a)(1); Cobb v. Department of the Treasury, EEOC

Request No. 05970077 (March 13, 1997).

CONCLUSION

For the reasons stated above, the Commission AFFIRMS the agency's

acceptance of allegation 3(a), AFFIRMS the agency's dismissal of

allegations 1(a), 1(b), 3(b), 3(d), 3(e), and 3(f); REVERSES the agency's

dismissal of allegations 3(c), 3(g), and 3(i); and REMANDS allegations

3(a), 3(c), 3(g), and 3(i) to the agency for processing as ORDERED below.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegations April 6, 1999within 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� (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 (T0993)

This decision affirms the agency's final decision in part, but it also

requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action

in an appropriate United States District Court on both that portion of

your complaint which the Commission has affirmed AND that portion of the

complaint which has been remanded for continued administrative processing.

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 your appeal with the

Commission, until such time as the agency issues its final decision

on your complaint. 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. If you

file a request to reconsider and also file a civil action, 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:

April 14, 1999

______________

Date Ronnie Blumenthal, Director

Office of Federal Operations