01974988
06-10-1999
Marsha L. Coleman-Adebayo, Appellant, v. Carol M. Browner, Administrator, Environmental Protection Agency, Agency.
Marsha L. Coleman-Adebayo v. Environmental Protection Agency
01974988
June 10, 1999
Marsha L. Coleman-Adebayo, )
Appellant, )
)
v. ) Appeal No. 01974988
) Agency Nos. 97-0032-HQ
) 96-0018-HQ
)
Carol M. Browner, )
Administrator, )
Environmental Protection )
Agency, )
Agency. )
______________________________)
DECISION
On June 12, 1997, appellant, by her attorney, filed a timely appeal
from the agency's June 4, 1997 final decision (FAD-1), which dismissed,
in part, appellant's February 12, 1997 EEO complaint, under agency
case number 97-0032-HQ. In her complaint, appellant had alleged
violations of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. (Title VII); as well as the Rehabilitation Act
of 1973, as amended, 29 U.S.C. 791 et seq. In her complaint, appellant
had alleged discrimination based on race (African-American), color
(Black), sex (female), reprisal, and disability (multiple sclerosis)
in connection with, inter alia, an allegedly hostile environment,
under-rated performance appraisals, denial of requests to travel, denial
of overtime compensation, a letter of unsatisfactory performance, and
denial of reasonable accommodation by not permitting her to work at
home. Appellant sought compensatory damages as a partial remedy.
By letter dated June 13, 1997, the agency informed appellant that it was
consolidating appellant's complaint with an earlier EEO complaint under
agency case number 96-0018-HQ. The earlier complaint was dated February
11, 1996, and was accepted for investigation by the agency in a May 6,
1996 letter. In her 1996 complaint, appellant had alleged discrimination
in violation of Title VII, regarding, inter alia, the agency's alleged
harassment of, and failure to promote, her. Appellant also requested,
in part, compensatory damages.
Subsequent to the issuance of FAD-1, the agency issued FAD-2, by letter
dated June 30, 1998, dismissing both appellant's complaints, pursuant
to 29 C.F.R. �1614.410 [sic],<1> for the stated reason that they were
the subject of a pending civil action appellant had filed against
the agency. Appellant received a copy of FAD-2, as indicated by the
certified mail return receipt (the "green card"). Although the date
of appellant's receipt of FAD-2 was not indicated on the green card,
it appears the agency received the signed green card on July 21, 1998.
We infer, therefore, that appellant received FAD-2 not later than that
date, i.e., July 21, 1998.
We find no evidence that appellant appealed FAD-2. However, we also
find that the agency was required to send a copy of FAD-2 to appellant's
attorney, in accordance with 29 C.F.R. �1614.605(d). We find no evidence
that the agency complied with this regulation. Thus, we will consider
FAD-2.
We find appellant, by an attorney other than the one who filed appellant's
appeal from FAD-1, filed a civil action on April 14, 1998, in United
States District Court for the District of Columbia, under case number
1:98CV00926. We find appellant filed her civil action, in pertinent part,
under Title VII, alleging the agency harassed her, subjected her to a
hostile environment, provided her with an unfair performance appraisal,
deprived her of awards and bonuses, and failed to promote her. In her
civil action, appellant also requested compensatory damages.
We find that appellant's civil action was filed after 180 days from the
filing of her June 12, 1997 appeal with the Commission and that there had
been no final decision issued by the Commission pertaining to her appeal.
See 29 C.F.R. �1614.408(d). We also find that the subject matters of
appellant's EEO complaints were inextricably intertwined and/or subsumed
within her civil action and/or were the same as or similar to the factual
allegations contained in her civil action (e.g., hostile work environment,
harassment, unfair performance appraisals, denial of awards and bonuses
and failure to promote).
However, since appellant's civil action did not raise any claims of
reasonable accommodation under the Rehabilitation Act, appellant's
allegation that the agency failed to provide her with reasonable
accommodation (allegation (10) in FAD-1), which allegation was accepted
for investigation by the agency, remains administratively viable under
agency case number 97-0032-HQ, unless appellant, with or without counsel,
advises the agency that she is no longer pursuing that issue or has
included that allegation in her civil action. The agency may make such
an inquiry of appellant in accordance with 29 C.F.R. �1614.107(g), and
may also inquire as to whether appellant remains represented by counsel
as to her EEO complaint.
Having reviewed the entire record, with regard to both EEO complaints and
her civil action, the Commission hereby REVERSES FAD-2 as to appellant's
allegation of disability discrimination, and AFFIRMS FAD-2 as to the
remainder of appellant's two complaints. The parties are advised that
the Commission's decision is not a decision on the merits of appellant's
allegation, which is hereby REMANDED for further processing at the
point at which processing ceased, in accordance with this decision
and applicable regulations. The agency is directed to comply with the
Commission's ORDER set forth 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 appellant
that it has received the remanded allegations within 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 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 acknowledgement 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(c) (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. �l6l4.604(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:
June 10, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The correct regulation is 29 C.F.R. �1614.107(c).