01994134
11-05-1999
Sonale Ortiz, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Sonale Ortiz, )
Appellant, )
)
v. ) Appeal No. 01994134
) Agency No. 99-DCW-13-Y019
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Commissary Agency), )
Agency. )
______________________________)
DECISION
On April 23, 1999, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) issued on April 12, 1999, pertaining
to a complaint of unlawful employment discrimination pursuant to Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et
seq. and Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq. The Commission accepts appellant's appeal in
accordance with EEOC No. 960.001.<1>
On or about March 4, 1999 appellant filed a formal complaint alleging that
she was the victim of unlawful employment discrimination on the basis of
Race (Jamaican/Indian), National Origin (Hawaiian), disability (physical)
and reprisal prior EEO activity. Therein, appellant alleges that she had
been subjected to a hostile work environment since 1994 thru October 1998.
Appellant provided a five page statement of alleged discriminatory
incidents. The alleged incidents are as follows: From 1994 thru October
1998 appellant was referred to as a �local� in a derogatory fashion; from
1994 thru October 1996 appellant was assigned duties that did not reflect
her grade or pay; appellant was not afforded a full time career employee
to assist with the backlog; she was ordered to take off her prescription
sunglasses, which was for her disability (blindness); she was made fun
of for wearing the sunglasses, appellant was not issued a handicapped
parking space for her disability; appellant was required to move heavy
material after having surgery which her supervisor was aware of and
appellant's physical appearance was constantly insulted by her supervisor.
On March 12, 1999 the agency issued a final decision dismissing
appellant's complaint for failure to initiate timely contact with
an EEO Counselor. The agency found that the alleged discriminatory
incidents addressed in the complaint occurred on September 15, 1998
and that appellant's initial EEO Counselor contact on January 15, 1999,
was more than forty-five days after the matter raised in the allegations
purportedly occurred.
On appeal, appellant argues that on July 23, 1998 she initially contacted
an EEO Counselor. At this time, appellant states that she informed
the EEO Counselor that she had been the victim of discrimination.
And in response to appellant's allegation, the counselor requested that
appellant write down her complaints and give them to her. On July 24,
1998, appellant followed up the EEO Counselors request and hand delivered
her written complaint. Furthermore, on July 30, 1998 in response to her
complaint filed with the counselor, she met with a personnel management
specialist who attempted alternative dispute resolution, and told him
that she wanted to get a lawyer and sue on her complaint.
The agency, in their decision, may have wrongly dismissed appellant's
complaint for failure to initiate timely contact with an EEO Counselor.
A complainant commences the EEO process by contacting an EEO Counselor
and "exhibiting an intent to begin the complaint process." See Gates
v. Department of Air Force, EEOC Request No. 05910798 (Nov. 22, 1991)
(quoting Moore v. Department of Treasury, EEOC Request No. 05900194 (May
24, 1990)). Clearly, appellant's contact with an EEO Counselor, on July
23, 1998 establishes the date of her initial contact but also establishes
her intent to begin the EEO process. Her intent is further demonstrated
by her letter to the counselor and her statement to the personnel
management specialist wanting to obtain a lawyer and sue. Furthermore,
since appellant's complaint alleges discriminatory incidents thru October
1998 at least one claim may be within the forty-five Limitation thus
making her complaint ripe for a continuing violation analysis.
Accordingly, the agency's decision to dismiss appellant's complaint for
failure to initiate timely contact with an EEO Counselor was improper and
is REVERSED. Appellant's complaint is REMANDED to the agency for further
processing in accordance with this decision and applicable regulations.
The agency is ORDERED to take the following action:
(1). The agency must contact appellant and conduct a supplemental
investigation to ascertain the exact dates the matters addressed in
appellant's complaint purportedly occurred, as well as the exact date
appellant first reasonably suspected discrimination.
(2). The agency must conduct a supplemental investigation to determine
whether the matters addressed in appellant's complaint constitute a
continuing violation.
Within fifteen (15) calendar days of the date that this decision becomes
final, the agency shall notify appellant that he has (15) calendar days
from the date of his receipt of the agency's notification to provide the
agency with the information outlined in provision 2 above. The agency
shall have fifteen (15) calendar days
from the date of its receipt of appellant's response to issue a final
decision or to notify appellant that the agency is processing his
complaint.
A copy of the agency's notice to appellant requesting the supplemental
information outlined in provision 2, as well as a copy of the new final
agency decision and/or notice of processing 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. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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 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 (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:
November 5, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
1Since the agency did not supply a copy of a certified mail
return receipt or any other material capable of establishing
the date appellant received the agency's final decision, the
Commission presumes that appellant's appeal was filed within
thirty (30) days of receipt of the agency's final decision. See,
29 C.F.R. �1614.402.