01991491
11-08-1999
Verdi E. Mathis, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Verdi E. Mathis v. Department of the Treasury
01991491
November 8, 1999
Verdi E. Mathis, )
Appellant, )
)
v. ) Appeal No. 01991491
) Agency No. 98-1366
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DECISION
On December 14, 1998, appellant filed an appeal from the agency's November
6, 1998 final decision (FAD), which partially dismissed appellant's July
29, 1998 formal EEO complaint.<1> For the reasons set forth below,
the Commission vacates the FAD. We are not persuaded by the agency's
response to appellant's appeal to reach a contrary determination.
The Commission finds that, although appellant filed an individual formal
EEO complaint in this matter, which complaint was the subject of the FAD,
appellant was one of ten present and former agency employees who sought
to file a "Consolidated Complaint of Race Discrimination."<2> It appears
that the employees, represented by a co-worker, were provided with EEO
counseling and notice of the right to file a formal EEO complaint.
We find the "Consolidated Complaint of Race Discrimination" to be,
in effect, a "group complaint." As the Commission previously stated:
[T]here are no regulations for processing a �group complaint.' The
regulations provide for the processing of individual, class,
and consolidated individual complaints. [T]he complainants have
clearly indicated their desire to have their complaints processed
jointly. Consequently, the agency should have processed the informal
complaints individually, issued each complainant a separate notice
of right to file a complaint, and notified the complainants of the
consolidation of their complaints for joint processing in accordance
with 29 C.F.R. �1614.606, once their formal complaints were filed."
See Carson v. Department of Veterans Affairs, EEOC Appeal No. 01955396
(June 7, 1996). Cf. Hines v. Department of the Air Force, EEOC Request
No. 05940917 (January 29, 1996) (class complaints).
It appears that appellant and nine other present or former agency
employees were counseled, and individually notified of their right to
file a complaint. However, the record reflects that only appellant's
individual complaint is the subject of the instant FAD and this appeal.
We note that the only allegation dismissed by the FAD, and expressly
appealed by appellant, was her claim that, for prohibited reasons,
she was allegedly "coerced" to accept a voluntary downgrade. The FAD
had dismissed this allegation for untimely EEO Counselor contact.<3>
See 29 C.F.R. ��1614.105(a)(1) and .107(b).
Having reviewed the entire record in the present case, the arguments
on appeal including those not expressly addressed herein, and for
the foregoing reasons, the Commission hereby VACATES the FAD and
REMANDS appellant's complaint for further processing consistent with
the Commission's decision and applicable regulations. The parties
are advised that this decision is not a decision on the merits of
appellant's complaint. The agency shall comply with the Commission's
ORDER set forth below.
ORDER
The agency is ORDERED to conduct a supplemental investigation and take
other appropriate actions as follows:
1. The agency shall investigate whether appellant's nine other
co-workers, identified in the "Consolidated Complaint," filed individual
complaints subsequent to their receipt of a notice of the right to
file a formal complaint, and, if so, the status of those complaints. If
necessary, in the event any of the complainants did not receive a copy of
the notice of the right to file a formal EEO complaint, the agency shall
ensure that each such complainant receives the appropriate notice.
2. The agency shall issue a report of supplemental investigation at
the conclusion of the supplemental investigation.
3. The agency shall consolidate all complaints that were filed, if
any, including appellant's, or explain why those complaints were not
consolidated or could not be consolidated. If the agency dismisses any
complaints, in whole or in part, including appellant's, it shall render
such dismissals, if any, by issuing a new final decision, with appeal
rights to the Commission. The final decision shall state legal grounds
and factual bases for dismissal, as well as identify any documents relied
upon.
4. All ordered activities, including but not limited to the report of
supplemental investigation, issuance of notices of the right to file a
formal EEO complaint, any order of consolidation, and issuance of any
new final decision shall be concluded within ninety (90) calendar days
from the date that this decision becomes final. A copy of any new final
decision, report of supplemental investigation, notice of consolidation,
and all relevant and applicable notices and documents shall be submitted
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. �l6l4.604(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:
11/08/1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1On appeal, appellant claims that she received the FAD on November 14,
1998. In the absence of evidence to the contrary, the Commission accepts
appellant's appeal as timely. See 29 C.F.R. ��1614.402 and .604, in
pertinent parts.
2See Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq.
3Under the circumstances of this case, we need not address
whether appellant's apparent claim of "constructive demotion" or
"constructive downgrade" renders her complaint a "mixed case" that
is appealable to the Merit Systems Protection Board (MSPB). See 29
C.F.R. �1614.302. Cf. Youngblood v. U.S. Postal Service, EEOC Request
No. 05970830 (June 17, 1999).