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Equal Employment Opportunity CommissionJan 20, 1999
01981583 (E.E.O.C. Jan. 20, 1999)

01981583

01-20-1999

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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