Beatrice N. Alvarez, Appellant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionNov 4, 1999
01991405 (E.E.O.C. Nov. 4, 1999)

01991405

11-04-1999

Beatrice N. Alvarez, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


Beatrice N. Alvarez v. Department of the Air Force

01991405

November 4, 1999

Beatrice N. Alvarez, )

Appellant, )

)

v. ) Appeal No. 01991405

) Agency No. AL900990221

F. Whitten Peters, )

Acting Secretary, )

Department of the Air Force, )

Agency. )

______________________________)

DECISION

For the reasons set forth below, the Commission vacates the agency's

October 30, 1998 final decision (FAD), to dismiss one of two allegations

raised in appellant's September 8, 1998 formal EEO complaint on the

grounds that it raised the same claim previously raised, pursuant to 29

C.F.R. �1614.107(a). We are not persuaded by the agency's response to

appellant's December 4, 1998 appeal<1> to reach a contrary conclusion.

The FAD accepted appellant's allegation (a) that, for prohibited

reasons:<2>

On [June 8, 1998], [appellant was] not referred for promotion

consideration to Supervisory Logistics Management Specialist, GS-0346-13,

[sic] (Temporary NTE 1 year), in LFF filled from Merit Promotion

Certificate P98-0285, issued [June 8, 1998].

The FAD dismissed allegation (b), which the agency defined as follows:

From [July 1998] to the present, [appellant has] not received experience

credit for performing duties as International Logistics Focal Point.

In dismissing allegation (b), the FAD declared that appellant

had raised the same claim on October 6, 1997, under case number

KHOF97637/KHOF97658.<3> In support of the FAD, the agency provided a copy

of an August 3, 1998 Request for Investigation (the request) purportedly

pertaining to appellant's October 6, 1997 EEO complaint. The request

referenced, in relevant part, under item (c), the following allegation:

From [July 10, 1993] to the present, [appellant] has not been credited

with GS-346-12 experience performed in FM.[<4>]

However, no copy of appellant's October 6, 1997 complaint was provided

to the Commission by the agency in the case file transmittal.

A review of the EEO Counselor's initial interview sheet, which appellant

incorporated by reference in the allegations portion of her formal

complaint, shows that appellant alleged as follows:

Since [July 1993] complainant has not been given credit for her experience

as International Logistics Focal Point (OPR) which would qualify her

for referral.

As part of the relief requested, appellant sought compensatory damages

and "credit for GS346-12 experience retroactive to 1993."

Appellant's appeal is not entirely clear. Similarly, the agency's

response to appellant's appeal lacks clarity. The agency argues,

for example, that the issue in appellant's prior complaint, which

the agency defines as alleging "from [July 10, 1993] to the present,

[appellant] has not been credited with GS-0346-12 experience performed in

FM," is "identical" to allegation (b) in appellant's present complaint,

to wit: "since [July 1993, appellant] had been denied credit for her

work experience as International Logistics Focal Point (OPR),[<5>] which

would qualify her for referral on the promotion certificate." However,

as we noted above, the FAD identified the date on which allegation (b)

arose in the present matter as July 1998, not July 1993.

For the reasons we have identified above, including but not limited to

discrepancies in dates and missing documents, the Commission finds that

the agency has failed to meet its burden of providing a clear record

in support of the FAD.<6> Henry v. U.S. Postal Service, EEOC Request

No. 05940897 (May 18, 1995); Hines v. U.S. Postal Service, EEOC Appeal

No. 01923566 (May 13, 1993); EEO Management Directive (MD) 110 for 29

C.F.R. Part 1614 (October 22, 1992), Ch. 5, �VIII(A).

Having reviewed the record in its entirety, the arguments on appeal

including those not expressly addressed herein, and for the foregoing

reasons, the Commission hereby VACATES the agency's decision to dismiss

allegation (b) and REMANDS this matter 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

certain other specified actions, with the cooperation of appellant and her

representative, if any, where reasonably necessary, and if so requested

by the agency's investigator. The agency's actions and supplemental

investigation shall include the following:

1. The agency and appellant, if necessary, shall ensure that the

investigator is provided with true copies of the EEO Counselor's report

pertaining to matters raised in appellant's October 6, 1997 formal

EEO complaint; as well appellant's October 6, 1997 complaint itself;

and any and all relevant documents pertaining to appellant's purported

prior matter which formed the basis for the dismissal of allegation (b)

by the agency in the present case.

2. The agency and appellant shall ensure that appellant's position and

employee status, at the time the present matter arose, is clearly and

specifically identified including the applicable unit in the activity

which employed appellant.

3. The agency and appellant, if necessary, shall ensure that any and all

definitions, terms of art, and abbreviations, are clearly identified,

spelled out, clarified, and placed in the appropriate context in

the present case; and that all referenced documents are also clearly

identified, complete, and legible.

4. Thereafter, the agency shall issue a supplemental report of

investigation; as well as a letter of acceptance to appellant and her

representative, if any, in the event the agency accepts allegation (b)

in the present case for investigation.

5. In the event the agency decides to again dismiss allegation (b),

it shall submit the dismissal in the form of a new final decision, with

appeal rights to the Commission, to appellant and her representative,

if any. The new final decision shall identify the issue being dismissed,

the legal grounds for dismissal, the factual bases for dismissal, and any

and all documents relied upon by the agency in again dismissing allegation

(b).

6. The agency shall complete all the above ORDERED actions, including

the issuance of the supplemental report of investigation and letter of

acceptance, or new final decision, within sixty (60) calendar days of

the date the Commission's decision becomes final in this matter.

7. True copies of the report of supplemental investigation, the documents

ORDERED to be produced, and the letter of acceptance or new final

decision, 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. �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:

11/04/1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1We accept appellant's appeal as timely in the absence of persuasive

evidence as to when she received the FAD.

2It appears that, at the time appellant filed her complaint, she was

a GS-2010-12 Inventory Management Specialist in the Mature Aircraft

Management Directorate, International Focal Point Division (LFF), of the

San Antonio (Texas) Air Logistics Center (SA-ALC). In her complaint,

appellant alleged discrimination based on race (Mexican-American) and

national origin (Hispanic), in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. 2000e et seq. The Commission recognizes

"Hispanic" as indicating national origin instead of race. See Quesada

v. United States Postal Service, EEOC Appeal No. 01940399 (August 19,

1994), at footnote 1 ("Mexican"), request to reconsider denied, Quesada

v. United States Postal Service, EEOC Request No. 05950003 (June 29,

1995).

3According to the EEO Counselor's report, appellant's prior complaint

was pending investigation under "OCI docket #SAN98AF0873E."

4The reference is not clear. A 1992 position description (PD) for

the GS-346-12 Logistics Management Specialist's position, provided

by appellant on appeal, refers, in pertinent part, to the Financial

Management Requirements Division Investment Funds Branch (FMII). The PD

also refers to the Directorate of Financial Management as "MM." However,

the request in the appellant's purported prior case, to which we referred

earlier, identified the Financial Management Directorate as "FMII."

5Although the reference is not clear, it appears that "OPR" may refer

to "Office of Primary Responsibility."

6We also note, in this regard, based on our review of documents submitted

by appellant on appeal, that the agency provided the Commission with an

incomplete copy of appellant's initial interview with the EEO Counselor.

As we indicated above, the initial interview sheet was incorporated by

reference in appellant's formal EEO complaint in this case.