01a01623
08-28-2000
______________, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
______________ v. Department of the Army
01A01623
August 28, 2000
.
______________,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A01623
Agency No. BEFLO9906J0200
DISMISSAL
Complainant filed an appeal with this Commission from an agency
letter dated November 12, 1999, informing complainant that a portion
of her complaint of unlawful employment discrimination would not be
investigated.<1> In its final decision, the agency notified complainant
that those issues not accepted for investigation will be reviewed by an
administrative judge at the time of a hearing for appropriateness of the
exclusion of those issues. In her complaint, complainant alleged that
she was subjected to discrimination on the bases of race (Hispanic),
sex (female), color (white), and in reprisal for prior EEO activity when:
On or about March 25, 1999, complainant became aware that Person A put a
sticky which stated �this action is a result of the settlement agreement
of a grievance� on a SF50 action in her Official OPF (filed May 7, 1999);
During the period of February 1995 - February 1997, Person B had
complainant fill out her own time card when the time keeper/secretary
kept time for all the other employees in this organization (filed May 7,
1999);
In January 1997, Person C gave complainant's Formal Grievance File to
Person B for review which caused problems between complainant and Person
B after the file was reviewed (filed May 7, 1999);
On March 27, 1999, complainant's paycheck did not reflect the actual hours
worked while on a special project in San Juan, PR (filed May 7, 1999);
For Pay period ending April 10, 1999, and April 27, 1999, complainant
received garnishments to her check (filed May 7, 1999);
Complainant did not receive interest on over $5,000.00 owed to her
by the government for money used on TDY orders in San Juan, PR.
Complainant received the $5,000.00 but did not receive any interest.
Complainant also stated that she had phone calls charged to her home
phone which the government did not address.
During the week of June 14, 1999, complainant became aware of the
non-selection for the Deputy Chief of Staff GS-301-15 position,
announcement #A32998, at the Headquarters, U.S. Army Corps of Engineers
(filed July 26, 1999);
On June 18, 1999, complainant was accused of taking a computer that was
used by a former employee in Military Programs (filed July 23, 1999).
The agency dismissed claim (1) pursuant to the regulation set forth
at 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(a)(1)), for failure to state a claim.
In addition, the agency dismissed claims (2) and (3) pursuant to the
regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. � 1614.107(a)(2)),
for untimely EEO Counselor contact. The agency accepted claims (4),
(5), (6), (7), and (8) for investigation.
Volume 64 Fed. Reg. 37, 644, 37, 656 (1999)(to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(b)) provides that where an agency
decides that some but not all of the claims in a complaint should be
dismissed, the agency shall notify the complainant of its determination;
however this determination is not appealable until final action is taken
on the remainder of the complaint. Thus, complainant's appeal to the
Commission regarding the non-accepted claims was prematurely filed and
is dismissed.
Furthermore, the Commission notes that on appeal, complainant references
a breach of settlement claim which is raised for the first time on appeal
and is therefore premature. If complainant wishes to pursue a breach of
settlement claim, then she must raise such a claim with the agency's EEO
Director pursuant to the regulation set forth at 64 Fed. Reg. 37,644,
37,660 (to be codified as 29 C.F.R. � 1614.504(a)).
Accordingly, complainant's appeal is hereby DISMISSED.
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 (S0400)
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. 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 28, 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.