01A20978_r
04-25-2002
Marija Hughes, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Marija Hughes v. Department of Labor
01A20978
April 25, 2002
.
Marija Hughes,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 01A20978
Agency No. 00-11-074
DECISION
Upon review, the Commission finds that the agency properly dismissed
complainant's complaint in part, and improperly dismissed complainant's
complaint in part. In her complaint and subsequent amendments and
attachments, complainant claims that she was discriminated against
on the bases of race (unspecified), national origin (Yugoslavian), age
(over 60), disability (chemical and electro-magnetic sensitivity, stress,
anxiety, and depression), sex (female) and in retaliation for prior EEO
activity when:
On March 17, 2000, complainant was re-exposed to glue and new carpet
near her office, when she had been promised that the carpet work would
be done on Saturday, March 18, 2000, a time when complainant would not
be exposed to those elements;
Complainant's office does not have ventilation or heat, and complainant
must keep her office door open, thereby exposing complainant to
pollutants.
Often complainant was not informed ahead of time that office renovations
were going to occur; and
Complainant worked in a hostile work environment. Specifically, a
co-worker imitated complainant's accent, called complainant a �cold
White bitch,� and, would tell complainant in front of other users of
the Technical Data Center that she did not know anything. A co-worker
also would repeatedly call and hang up on complainant, and tried to
get complainant in trouble by reporting falsities to complainant's
supervisors. Additionally, complainant's prior supervisor attempted
to fire complainant because complainant could not use a computer.
A co-worker would also interfere with complainant's work assignments and
productivity, and, complainant was told that she was �sick in the head.�
By letter dated April 7, 2000, the agency requested additional information
regarding claim 1, the claim raised specifically in complainant's
formal complaint dated March 17, 2000. In its final decision, dated
November 28, 2001, the agency dismissed complainant's complaint for
failure to cooperate, pursuant to 29 C.F.R. � 1614.107(a)(7), and the
agency dismissed the additional claims raised in complainant's April
12, 2000 response to the agency, now listed as claims 2, 3 and 4,
for failure to raise the claims with an EEO Counselor, pursuant to 29
C.F.R. � 1614.107(a)(2).
EEOC Regulation 29 C.F.R. � 1614.107(a)(7) provides for the dismissal of
a complaint where the agency has provided the complainant with a written
request to provide information or otherwise proceed with the complaint,
and the complainant has failed to respond to the request within 15
days of its receipt or the complainant's response does not address the
agency's request, provided that the request included a notice of the
proposed dismissal. Instead of dismissing for failure to cooperate,
the complaint may be adjudicated if sufficient information for that
purpose is available.
The record reveals that by letter dated April 7, 2000, the agency
requested that complainant provide additional information regarding her
complaint. The record also reveals that by letter dated April 12, 2000,
complainant attempted to respond to complainant's request. Additionally,
there are numerous documents in the record that are responsive to the
agency's questions. Therefore, the Commission finds that the agency
improperly dismissed complainant's complaint for failure to cooperate.
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) states, in pertinent part,
that a complaint can be dismissed by the agency in whole or in part,
where it �raises a matter that has not been brought to the attention
of a Counselor and is not like or related to a matter that has been
brought to the attention of a Counselor.� Complainant's initial
counselor contact occurred on February 25, 2000. Upon review of the
EEO Counselor's report, the Commission finds that the matters of the
lack of ventilation in complainant's office and the agency's failure
to inform complainant when renovations were to occur, were raised with
the EEO Counselor. Additionally, these matters regarding ventilation and
notice of renovations are like or related to the matters of complainant's
exposure to glue and carpet installation at her workplace.<1> Therefore,
the Commission concludes that such matters were brought to the attention
of an EEO Counselor, and were raised in a timely manner. Complainant's
claim of a hostile work environment, however, was not raised with an
EEO Counselor, and, claim 4 is not like or related to a matter that
complainant brought to the attention of an EEO Counselor. Therefore,
the claim of harassment raised in complainant's April 12, 2000 letter was
properly dismissed by the agency, pursuant to 29 C.F.R. � 1614.107(a)(2).
If complainant wishes to file a complaint of discrimination regarding her
claim of harassment, she must first contact an EEO Counselor regarding
that matter.
Therefore, the agency's decision to dismiss claim 1 for failure to
cooperate was improper, and is hereby REVERSED. Claim 1 is REMANDED to
the agency for further processing in accordance with this decision and
the Order below. The agency's decision to dismiss claims 2 and 3 for
failure to raise these allegations with an EEO Counselor was improper,
and is hereby REVERSED. Claims 2 and 3 are REMANDED to the agency for
further processing in accordance with this decision and the Order below.
The agency's decision to dismiss claim 4 for failure to raise the
allegation with an EEO Counselor was proper, and is AFFIRMED.
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 (T0900)
This decision affirms the agency's final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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. 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 (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
April 25, 2002
__________________
Date
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
______________________________
1The Commission also notes that these issues were raised in complainant's
informal complaint, dated February 24, 2000. Complainant also raised
the issue of ventilation in a letter to the agency dated March 17, 2000.