01a04903
08-22-2000
Teresa Long, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Teresa Long v. Department of Commerce
01A04903
August 22, 2000
.
Teresa Long,
Complainant,
v.
William M. Daley,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A04903
Agency No. 00-63-00756D
DECISION
The instant matter is being processed pursuant to a Memorandum of
Understanding (MOU) entered into by the agency, the Bureau of the Census,
and the United States Equal Employment Opportunity Commission.<1> The
MOU was entered into in order to process complaints arising from the
2000 Decennial Census more effectively and efficiently.
Pursuant to the MOU, individuals file their complaints directly with
the Commission. The Commission, through its Washington, D.C. Field
Office, then conducts an early assessment of complaints and neutral
evaluation of cases. The Washington, D.C. Field Office of the Commission
establishes a record of the complaint by obtaining an affidavit from the
complainant and by contacting an agency official to obtain the necessary
information on the complaint. Based on the record established by the
Washington, D.C. Field Office, the Washington, D.C. Field Office will:
(1) notify the agency that the individual has elected not to file a
formal complaint; (2) issue a decision dismissing the complaint and
notify the complainant of his or her right to appeal the decision to
the Office of Federal Operations; (3) conduct settlement negotiations;
or (4) notify the complainant that the complaint has been accepted and
forward the complaint to the agency for further investigation.
In the instant matter, the Washington, D.C. Field Office of the Commission
issued a decision dated June 2, 2000, dismissing the instant complaint
for failing to state a claim. Complainant alleged that due to her race
and sex and in retaliation for �[standing] up for� another employee,
she was terminated. The prior decision stated that the agency denied
discriminating against complainant and maintained that complainant was
terminated for calling Coworker 1 a �boy� after being warned about making
such a remark. The prior decision concluded that complainant failed
to �establish that a man would be retained [in] his position under the
same circumstances as occurred in the instant case.� The prior decision
also found that complainant failed to claim that she engaged in prior
protected EEO activity.
Complaints shall be dismissed for failing to state a claim pursuant
to the regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999) (to
be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.107(a)(1)). The Commission agrees with the portion of the prior
decision finding that complainant failed to state a claim of retaliation.
Complainant has not claimed or shown that she engaged in any activity
protected under 29 C.F.R. � 1614.101(b). Although complainant asserts
that she �stood up� for Coworker 2 and that Coworker 2 later �filed a
complaint,� complainant has not claimed that her actions in support of
Coworker 2 were in opposition to employment discrimination covered under
the laws enforced by the EEOC.
Complainant's claim of termination on the bases of sex and race
discrimination, however, does state a claim of employment discrimination.
Complainant's claim of termination alleges a harm to a term, condition, or
privilege of complainant's employment. The dismissal of the termination
claim (based on sex and race discrimination) improperly addressed the
merits of the claim in a procedural dismissal. Therefore, we find that
the portion of the complaint alleging sex and race discrimination states
a claim of employment discrimination.
The Washington, D.C. Field Office's decision dismissing the claim
of retaliation is AFFIRMED. The Washington, D.C. Field Office's
decision dismissing the portion of the complaint alleging race and sex
discrimination is REVERSED and we REMAND this portion of the complaint to
the Washington, D.C. Field Office for further processing in accordance
with this decision, the Memorandum of Understanding, and applicable
regulations.
ORDER
The Washington, D.C. Field Office shall, pursuant to the Memorandum of
Understanding referenced in this decision, conduct settlement negotiations
on the remanded portion of the complaint or notify complainant that
the remanded portion of the complaint has been accepted and forward the
complaint to the agency for further investigation.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 22, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
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.