01993734
11-02-2000
Maria A. Amburgey, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Maria A. Amburgey, )
Complainant, )
)
v. ) Appeal No. 01993734
) Agency No. 97-1313
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
Complainant filed a timely<1> appeal with this Commission from a final
agency decision (FAD) dated February 25, 1999, dismissing 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.<2>
BACKGROUND
Complainant filed a formal complaint on June 23, 1997, alleging
discrimination on the bases of race (Hispanic), national origin
(Mexican-Panamanian), and retaliation (prior EEO activity) when: (1)
commencing on April 17, 1997, and continuously, she received excessive
requests for status reports on all duties performed; (2) commencing on
April 30, 1997, and continuously, her daily activities were monitored;
(3) her request for a credit hour for May 30, 1997, was denied; and (4)
on June 3, 1997, her request for reassignment was denied. Complainant
resigned from employment with the agency, effective August 30, 1997.
In a final agency decision dated September 30, 1997, the agency dismissed
complainant's claims, stating that complainant's subsequent resignation
from employment with the agency rendered the matters moot. On November 3,
1997, complainant appealed the dismissal to this Commission, asserting
that she was forced to resign due to the alleged discrimination.
In Maria A. Amburgey v. Robert E. Rubin, Secretary, Department of the
Treasury, EEOC Appeal No. 01980664 (September 2, 1998), the Commission
found that the agency improperly dismissed complainant's complaint.
It ordered the agency to provide complainant the opportunity to obtain
EEO counseling for the claim regarding constructive discharge and to
amend her complaint to include the same. In a letter dated November 25,
1998, the agency told complainant to contact the agency's Headquarters
EEO Office to obtain the name and telephone number of an EEO counselor.
The agency instructed complainant to contact the EEO Office within 15
calendar days of her receipt of their letter. The record shows that
complainant received that letter on November 27, 1998. Complainant's
phone records, as contained in the record, reveal that on December 9,
1998 complainant did call the agency's Headquarters EEO Office at (202)
622-8372. Over a period of four months, complainant tried to contact
the agency, concerning her complaint, but did not succeed until March
of 1999.
The agency sent complainant a letter on February 25, 1999 dismissing the
portion of complainant's complaint regarding the constructive discharge
issue for failure to cooperate. The decision reasoned that complainant
had not contacted an EEO Counselor regarding this matter. The agency then
issued another letter dated July 8, 1999, rescinding the February 25, 1999
dismissal letter and administratively closing the constructive discharge
issue because there was �no evidence that an official formal complaint
of discrimination was filed on the matter.� Thereafter, in a letter to
the Commission dated July 16, 1999, the agency explained that there was a
fifth working condition issue, inextricably linked to the first four, that
it had previously inadvertently omitted. The agency did not explain what
that issue involved, but did state that it had amended its September 30,
1997 dismissal letter to include the fifth issue. The agency also asked
the Commission to issue a decision on all five working condition issues.
Accordingly, the issues before the Commission are the five working
condition issues and the constructive discharge issue.
ANALYSIS AND FINDINGS
The record clearly demonstrates that complainant timely complied with
the agency's request that she contact their Headquarters EEO Office.
There is no indication in the record that complainant failed to cooperate.
We, therefore, disagree with the agency's dismissal of the constructive
discharge issue in their February 25, 1999 letter. There is no need for
us to reverse that letter because the agency already did so in its July
8, 1999 letter. We do, however, find that the July 8, 1999 letter was
incorrect when it administratively closed the constructive discharge issue
for lack of an official formal complaint of discrimination on the matter.
Complainant did not file a formal complaint on the constructive discharge
issue because she was not provided with a notice of the right to file
a formal complaint. Complainant tried, to no avail, to contact an
EEO Counselor on the matter so that she could file a formal complaint.
We are, therefore, remanding the constructive discharge issue back to
the agency for further processing. Further, because the constructive
discharge issue is an actionable claim, the five working condition issues
are not moot.
CONCLUSION
We therefore REVERSE the agency's administrative closure of July 8,
1999, and find that it along with the five work related issues must be
processed in accordance with the ORDER below.
ORDER (E0400)
The agency is ORDERED to process the remanded claims (i.e. the five
working condition issues and the constructive discharge issue) together,
in accordance with 64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified
and hereinafter referred to as 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
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:
11-02-00
Date Carlton M. Hadden, Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date 1 The agency did not supply a copy of a certified mail return
receipt with the date of receipt by complainant or any other material
capable of establishing the date complainant received the FAD. Since the
agency failed to submit evidence of the date of receipt, the Commission
presumes that complainant's appeal was filed within thirty (30) days of
receipt of the agency's final decision. See 29 C.F.R. � 1614.402(a).
2 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.