01981583
01-20-1999
)
Randy L. Ice & Cheri S. Ice v. Department of the Treasury
01981583
Jan. 20, 1999
Randy L. Ice, )
Cheri S. Ice, )
Appellants, )
)
v. ) Appeal Nos. 01981583
) 01981584
) Agency Nos. 97-4309
Robert E. Rubin, ) 97-4310
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
In accordance with 29 C.F.R. �1614.606, the Commission hereby consolidates
appellants' complaints for decision on appeal. On December 19, 1997,
appellants filed timely appeals with this Commission from final agency
decisions (FAD's) received by them on December 3, 1997, pertaining to
their complaints of unlawful employment discrimination.
A review of the record discloses that appellants initiated counseling with
an agency EEO Office on June 24, 1997. That office purportedly informed
appellants that their complaint failed to fall under the jurisdiction
of the EEO statutes. Notwithstanding this response, on or about July
14, 1997, appellants telephoned another EEO Counselor regarding their
concerns. Over the course of several weeks, appellants were unable to
attend two scheduled meetings with the EEO Counselor. However, during
this time they were able to deliver information which they thought was
pertinent to their complaints. On August 1, 1997, believing that 30
days had passed since they initiated counseling, appellants jointly sent
a document entitled "Formal Complaint" to the agency's Commissioner.
On November 26, 1997, the agency issued two FAD's dismissing appellants'
complaint pursuant to 29 C.F.R. �1614.107(b), for raising matters that
were not brought to the attention of an EEO Counselor and were not like or
related to matters that were brought to the attention of an EEO Counselor.
In both cases the agency determined that appellants' contact with the
EEO Office did not fulfil the requirement that complainants first seek
informal EEO counseling before filing a formal complaint.
The Commission notes that appellants' self-entitled "Formal Complaint"
is a five-page document generally describing alleged violations of
appellants' rights to privacy, the Fair Labor Standards Act (FLSA),
veterans preference laws, the Americans with Disabilities Act (ADA), the
Equal Pay Act, and the Rehabilitation Act. Appellants acknowledged the
vagueness of their complaint by stating, "We charge that we are unable
to separate out the allegations by date, actions, and damages to us
because of the stonewalling, impeding, denials, deception, persuasion
and coercion over an extended period of time."
EEOC Regulation 29 C.F.R. �1614.107(b) states, in pertinent part, that
an agency shall dismiss a complaint or portion thereof which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling.
In the instant case, we find that the agency erred in dismissing
appellants' complaint pursuant to 29 C.F.R. �1614.107(b). While the
Commission acknowledges that the agency was unable to conduct counseling
to the extent typically accomplished, we find that the agency was on
notice of the allegations appellants raised, as they were identified
in the materials presented to the EEO Counselor in the period between
appellants' initial contact and their submission of the joint formal
complaint. Accordingly, we find that the agency's decision to dismiss
appellants' complaint for raising matters that were not brought to the
attention of an EEO Counselor was improper.
However, we note that the information provided by appellants in their
formal complaint is not "sufficiently precise to ... describe generally
the action(s) or practice(s) that form the basis of [their] complaint[s].
29 C.F.R. �1614.106(c). The formal complaint submitted by appellants
failed to identify, for each appellant, the basis of the alleged
discrimination, the date(s) and a precise description of the incident(s)
of alleged discrimination, the responsible management officials, and
the remedy requested by appellants. Moreover, the complaint contained
allegations of violations of laws not covered by the EEOC Regulations,
i.e., the FSLA, ADA, veterans preference laws, and rights to privacy.
Consequently, we find that further counseling is required to clarify
the allegations being pursued.
Accordingly, the agency's decision to dismiss appellants' complaint was
improper, and is hereby REVERSED. The case is REMANDED to the agency for
further processing in accordance with this decision and the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall send appellants a letter informing them of
their right to meet with an EEO Counselor to clarify their allegations.
The agency shall inform appellants that they must contact the EEO Office
within fifteen (15) calendar days of their receipt of the notice or face
dismissal pursuant to 29 C.F.R. �1614.107(g), for failure to cooperate.
If appellants timely respond to the agency's notice, the parties
shall clarify the allegations being raised. Specifically, appellants
shall identify specific dates, actions, and bases of the alleged
discrimination.
If appellants fail to timely respond to the agency's notice, within
forty-five (45) calendar days of the date this decision becomes final,
the agency shall issue a FAD dismissing the complaint pursuant to 29
C.F.R. �1614.107(g).
A copy of the agency's notice to appellants of the opportunity to
clarify their allegations and/or a copy of the new FAD 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:
Jan. 20, 1999 Ronnie Blumenthal, Director
DATE Office of Federal Operations