01a42769
09-21-2005
Mary E. Daye, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Mary E. Daye v. Department of Homeland Security
01A42769
September 21, 2005
.
Mary E. Daye,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A42769
DISMISSAL OF APPEAL
On December 2, 2003, Mary E. Daye (complainant) brought to the attention
of the agency's Headquarters Support Command Equal Opportunity Staff
an EEO claim which the agency summarized as follows:
HOSTILE WORK ENVIRONMENT
[Complainant] alleges that she was discriminated against when the [agency]
harassed and subjected her to a hostile work environment based on her race
(African American) and sex (female). Noted below are some of the examples
of harassment that [complainant] cited in her EEO Intake Questionnaire:
1) A caucasian female co-worker yelled at her in full sight of everyone
in the office during a training session that was being provided.
The same individual was tasked to train [complainant] provided partial
or no guidance, whereas an international intern student who needed
assistance with the same project was provided with thorough training
and assistance;
2) [Complainant] stated that she is used as an example by management,
as it applies to her telecommuting, training, and job duties;
3) [Complainant] received a Memorandum of Team Reassignment,
dated November 25, 2003, that criticized the level of support that
she provided to her customers in quota management and Informational
Program areas.
On February 13, 2004 the parties entered a settlement agreement resolving
complainant's EEO claim. In the settlement agreement the agency promised,
among other things, to take certain actions relating to complainant's
training and work assignments and to refrain from retaliating against
complainant. In return, complainant agreed to withdraw her EEO
complaint. The settlement agreement also provided as follows:
7. If the Employee believes that the U.S. Coast Guard has failed to
comply with the terms of the Resolution Agreement, he/she shall notify:
Civil Rights Program Manager
Coast Guard Headquarters
[address omitted]
Such notice must be in writing and submitted within 30 days of the date
when he/she knew, or should have known, of the alleged noncompliance.
In accordance with 29 C.F.R., Section 1614.504, the employee may request
that the terms of the Resolution Agreement be specifically implemented,
or alternatively, that the allegation(s) be reinstated for further
action from the point the complaint processing ceased. In the event the
complaining party alleges noncompliance and chooses to reinstate his/her
allegations of discrimination, he/she hereby acknowledges that his/her
request for reinstatement restores the status quo, requiring that he/she
return in full to the agency any relief that has been provided.
Approximately one month after the settlement agreement was executed,
complainant wrote to the Commission's Office of Federal Operations,
stating in part:
Since signing the agreement I have been retaliated against as well as
threatened. I am not satisfied with the agency's attempt to resolve the
matter. I wish to make an appeal to the agency's resolution agreement.
Commission regulation 29 C.F.R. Sec.1614.504(a)), provides that '[i]f
the complainant believes that the agency has failed to comply with the
terms of a settlement agreement or decision, the complainant shall notify
the EEO Director, in writing, of the alleged noncompliance within 30
days of when the complainant knew or should have known of the alleged
noncompliance.' A review of the settlement agreement in the instant
case reveals that complainant was informed of the process described in
Commission Regulation 29 C.F.R. Sec. 1614.504(b), further provides that
the agency shall resolve the matter and respond to the complainant in
writing. If the agency has not responded to the complainant or if the
complainant is not satisfied with the agency's attempt to resolve the
matter, the complainant may appeal to the Commission for a determination
as to whether the agency has complied with the terms of the settlement
agreement or final decision. The complainant may file such an appeal
within thirty-five days after she has served the agency with the
allegations of noncompliance but must file an appeal within thirty days
of her receipt of the agency's determination.
In this case, complainant failed to notify the agency of its alleged
breach, as required by EEOC Regulations. Therefore, complainant's appeal
to the Commission is premature. See Foster v. Department of Veterans
Affairs, EEOC Request No. 05930046 (June 4, 1993). Complainant must
first formally notify the agency of her allegation of non-compliance
before the Commission can properly act upon her request. This will
permit the agency to investigate its efforts to perform its obligations
under the settlement agreement and allow it to attempt to resolve the
matter. Accordingly, the complainant's appeal is DISMISSED WITHOUT
PREJUDICE.
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. Sec. 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. Sec. 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. Sec. 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. 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. Sec. 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. Secs. 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
September 21, 2005
__________________
Date