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.