01985697
12-10-1999
Sandra Perillo, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Sandra Perillo v. Department of the Treasury
01985697
December 10, 1999
Sandra Perillo, )
Complainant, )
)
v. ) Appeal No. 01985697
) Agency No. 98-3202
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DECISION
On July 13, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) issued on June 24, 1998, pertaining
to her complaint of unlawful employment discrimination, denying
complainant's request that the agency recommence processing of EEO
complaint TD-4186.<1> The Commission accepts complainant's appeal in
accordance with EEOC No. 960.001.
According to the record, complainant filed an EEO complaint on July 8,
1993 (93-4186) raising eighteen claims of discrimination. Specifically,
complainant alleged that she was subjected to discrimination based on
her race, color (white), sex (female), national origin (Italian), and
in reprisal for prior EEO activity when:
in May 1993, the agency failed to appropriately maintain documents in
complainant's Employee Performance File that reflect her accomplishments;
as of July 8, 1993, the agency failed to provide complainant with a
fiscal year 1992 performance appraisal;
as of July 8, 1993, the agency failed to change complainant's rating of
record for fiscal year 1990 appraisal year, as agreed upon in September
1991;
as of July 8, 1993, the agency failed to address complainant's concerns
regarding her 1991 Performance Management Recognition System (PMRS)
appraisal in the agency grievance proceedings;
as of July 8, 1993, the agency required complainant to perform at a
higher standard for evaluation purposes and held her to more stringent
procedures than her peers;
as of July 8, 1993, the agency failed to provide complainant with progress
reviews consistent with other agency District Managers;
as of July 8, 1993, the agency failed to provide complainant with timely
feedback and direction regarding her performance under the PMRS;
as of July 8, 1993, the agency failed to provide complainant with
duties that would enhance her position and development, i.e., Individual
Development Plan, Management Development Plan;
in January 1991, the agency failed to personally alert complainant of
promotional opportunities;
in April 1993, the agency failed to keep complainant's medical information
confidential;
in 1992, the agency reassigned complainant from a position as Group
Manager (Group 1834) to Manger Quality Assurance Assessment Section;
in fiscal year 1991, the agency subjected complainant to intolerable
working conditions;
as of July 8, 1993, the agency subjected complainant to a hostile working
environment (sexual harassment) while she was employed in the Philadelphia
District Office;
as of July 8, 1993, the agency required complainant to sign her attendance
sheet each pay period;
as of July 8, 1993, the agency failed to include all Standard Form
SF-50's in complainant's official personnel file;
as of July 8, 1993, the agency failed to adequately communicate with
complainant. Specifically, the agency denied complainant a number of
the agency's Send A Message system;
as of July 8, 1993, the agency failed to appropriately provide complainant
with her full general pay increase; and
on June 24, 1993, the agency limited complainant's job responsibilities
by requiring her to complete checklists on cases.
On September 11, 1993, complainant filed an appeal with the Merit Systems
Protection Board (MSPB) regarding a reduction in grade. Following an
investigation of her EEO complaint, on December 8, 1993, the agency issued
a final decision dismissing seventeen of the eighteen claims raised by
complainant on the grounds that they were inextricably intertwined with
the issue raised in her MSPB appeal. On appeal, the Commission affirmed
the dismissal of fourteen of the seventeen claims as being inextricably
intertwined and remanded claims 9, 10, 13, and 14 to the agency for
further processing. EEOC Appeal No. 01942484 (January 5, 1995).<2>
According to complainant, the MSPB ruled that they lacked jurisdiction
to hear the fourteen remanded claims.<3> Consequently, by letter filed
June 3, 1998, complainant requested that the agency reinitiate processing
of the claims previously dismissed as inextricably intertwined with
the MSPB appeal.<4> The agency interpreted complainant's request as a
formal complaint and in its final decision of June 24, 1998, the agency
dismissed the complaint for failing to raise the matters therein with
an EEO Counselor.
Upon review, we find that the agency's dismissal was improper. Volume 64
Fed. Reg. 37,644, 37, 659 (1999) (to be codified at and hereinafter
referred to as 29 C.F.R. � 1614.302) provides in relevant part that where
the agency or the MSPB administrative judge questions the jurisdiction
over the appeal the agency shall hold the mixed case complaint in abeyance
until the MSPB's administrative judge rules on the jurisdictional issue.
Furthermore, if the MSPB's administrative judge finds that the MSPB
does not have jurisdiction over the matter, the agency shall recommence
processing of the mixed case complaint as a non-mixed case EEO complaint.
It appears that based on complainant's contentions, the MSPB declined to
accept jurisdiction over fourteen claims which were dismissed from the
EEO process based on her appeal to the MSPB. Where EEO claims, which are
otherwise non-appealable, are found to be inextricably intertwined with
a matter pending before the MSPB, the inextricably intertwined claims
should be remanded for consolidation with the MSPB appeal; however,
where there is a question regarding the MSPB jurisdiction over those
claims, the agency should hold the EEO complaint in abeyance pending a
determination of the MSPB regarding jurisdiction. In the present case,
the MSPB declined to accept jurisdiction over the fourteen EEO claims
previously found to be inextricably intertwined with complainant's MSPB
appeal. To allow the agency to reject the subject fourteen claims from
further processing, would mean that the claims would not be processed
in any administrative forum. See Mascarenas v. Department of Defense,
EEOC Request No. 05920240 (May 18, 1992). It is the Commission's policy
to preserve a complainant's EEO rights whenever possible. Id. (citing
Erdman v. Department of the Army, EEOC Request No. 05910729 (October 31,
1991). Therefore, the agency's decision is hereby VACATED. The subject
fourteen claims (designated above as claims 1-8, 11, 12, and 15-18 are
hereby REMANDED to the agency for processing through the EEO forum.
ORDER (E1199)
The agency is ORDERED to process the remanded claims 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 an
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 (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
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:
December 10, 1999
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.
2We note that there was a second complaint (Agency No. 94-4021M), which
was consolidated with complainant's prior complaint (Agency No. 93-4186).
The agency dismissed complaint 94-4021M on the grounds that it raised the
same matter as raised in complainant's MSPB appeal, namely, the reduction
in her grade. The Commission affirmed the dismissal of complaint 94-4021M
and complainant does not include the claim from complaint 94-4021M in
her present request for reinstatement. Consequently, complaint 94-4021M
will not be addressed further herein.
3We note that the record does not contain any decision(s) from the
MSPB regarding the above matters; however, the agency does not dispute
complainant's statements regarding the outcome of the MSPB determination.
4We note that in her letter filed June 3, 1998, complainant contends
that all eighteen of her claims form complaint 93-4186 have not been
processed; however, as indicated above, four of those eighteen claims
were previously remanded for processing by the Commission in EEOC Appeal
No. 01942484 (January 5, 1995).