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