01992039
06-07-2000
Ramona R. Campbell, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Ramona R. Campbell, )
Complainant, )
)
v. ) Appeal No. 01992039
) Agency Nos. DON-96-00146-007
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
We find that the agency's December 16, 1998 decision dismissing the
complaint on the grounds of failure to state a claim is proper, in
part, pursuant to 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. �1614.107(a)(1) and (8))<1>.
The record shows that complainant claimed that she had been discriminated
against on the bases of physical disability, mental disability, and
reprisal when: (a) the agency ordered a second desk audit; and, (b)
she was harassed in the processing of her previous complaint.
The agency issued a final decision on December 19, 1998, dismissing the
complaint on the basis of failure to state a claim. Concerning claim
(a), the agency found that this issue was �inextricably intertwined�
with a previous complaint that is currently pending on appeal before
the Commission. The agency further found that because the second desk
audit was performed �in anticipation of litigation� it is covered by the
attorney work product doctrine and is protected from disclosure. Regarding
claim (b) the agency found that the challenge of the processing of
a complaint is not �the basis of a new complaint� and dismissed this
matter.
On appeal, Complainant acknowledges that claim (a) was addressed by an
EEOC Administrative Judge (AJ) in a decision regarding a prior complaint
she filed. Complainant claims, however, that this �is in no way
conclusive to what [she] intend[s] to litigate concerning this matter�.
EEOC Regulations provide that an agency shall dismiss a complaint or
portion of a complaint that states the same claim that is pending before
or has been decided by the agency or the Commission. We note that while
the agency found that claim (a) had been raised in a previous complaint,
it failed to provide the Commission with sufficient documentation to
make a determination whether this same claim had in fact been previously
considered by the agency and was pending appeal before the Commission.
Clearly, it is the burden of the agency to have evidence or proof in
support of its final decision. See Marshall v. Department of the Navy,
EEOC Request No. 05910685 (September 6, 1991).
We further note that the agency found that the desk audit issue is out
of the jurisdiction of EEOC Regulations because the audit was performed
�in anticipation of litigation� and is therefore, covered by the
attorney work product doctrine. We disagree with the agency's finding.
The desk audit is one of the alleged discriminatory events raised by
Complainant in her formal complaint. We find that the agency's �work
product� determination articulates a reason that goes to the merits of
appellant's claim, and is irrelevant to the procedural issues of whether
she has stated a justiciable claim or whether the matter was raised in
a prior complaint. See Ferrazzoli v. USPS, EEOC Request No. 05910642
(August 15, 1991). Accordingly, the agency's decision to dismiss claim
(a) was improper and is REVERSED.
Concerning claim (b) we find that pursuant to the Commission's
regulations, the agency is required to dismiss complainant's claims of
improper processing. When claims of improper processing are raised, the
complainant should be referred to the agency official responsible for
the quality of complaints processing, and the agency should earnestly
attempt to resolve any dissatisfaction with the complaints process as
early and as expeditiously as possible. See EEOC - MD-110 (5-25), as
revised, November 9, 1999. Complainant is therefore advised to contact
an official in the agency's EEO office, if she believes that her prior
complaint was improperly processed.
Accordingly, the agency's final decision is MODIFIED. The dismissal
of claim (a) was improper an is hereby REVERSED. Claim (a) is REMANDED
for further processing in accordance with this decision and applicable
regulations. The dismissal of claim (b) is AFFIRMED for the reasons
set forth above.
ORDER (E0400)
The agency is ORDERED to process the remanded claim (claim (a)) 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 claim
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 (T0400)
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:
June 7, 2000
DATE Carlton M. Hadden, Acting 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
___________ __________________________________
DATE EQUAL EMPLOYMENT ASSISTANT
1On 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.