Carol Briley, Appellant,v.John W. Carlin, Archivist of the United States, National Archives and Records Administration, Agency.

Equal Employment Opportunity CommissionOct 28, 1999
01985654 (E.E.O.C. Oct. 28, 1999)

01985654

10-28-1999

Carol Briley, Appellant, v. John W. Carlin, Archivist of the United States, National Archives and Records Administration, Agency.


Carol Briley v. National Archives and Records Administration

01985654

October 28, 1999

Carol Briley, )

Appellant, )

)

v. ) Appeal No. 01985654

) Agency Nos. 9709; 9712

John W. Carlin, )

Archivist of the United States, )

National Archives and Records )

Administration, )

Agency. )

_________________________________)

DECISION

Appellant filed an appeal with this Commission from a decision dated June

12, 1998 dismissing a portion of appellant's complaint<1>for failure to

cooperate and the remaining portion of appellant's complaint for failure

to receive EEO counseling. The agency identified the complaint as being

comprised of fourteen separate allegations.

The instant complaint was the subject of a prior Commission decision in

Briley v. National Archives and Records Admin., EEOC Appeal No. 01975242

(Apr. 6, 1998). In EEOC Appeal No. 01975242 the Commission found that

"appellant alleged that the agency has engaged in a pattern and practice

of denying her `grooming, training and advancement' opportunities since

she began to pursue a GS-12 position in 1993." Briley, EEOC Appeal

No. 01975242. The Commission remanded the matter so that the agency could

"request that appellant provide specific dates and incidents that comprise

the alleged pattern and practice by the agency of denying appellant

advancement opportunities." Id. The Commission advised appellant not

to include incidents that were previously raised in prior complaints

except as clearly designated background information. Id.

The agency subsequently requested additional information from appellant

regarding the consolidated complaints. Appellant responded by letter

dated June 7, 1998 as follows (emphasis original):

[Appellant's] claims in the these two consolidated complaints was

essentially that [appellant], a GS-11 Archivist (1420 series) has

been denied since 1991 a promotion to a GS-12 as part of a pattern and

practice in [the agency] of denying women promotions. . . . We believe

the following facts are relevant to this claim and that we are not so much

talking specific instances with specific dates, but general patterns and

practices extending back into the late 80's to the present. These general

events include the following which we wish to have investigated.

Appellant then listed fourteen separately numbered "events" which

primarily involved her claim that women archivists in the agency were not

being promoted or given advancement opportunities as frequently as men.

The agency treated these fourteen "events" as separate allegations.

The Commission finds that there is just one allegation in the fourteen

events listed by appellant in her June 7, 1998 letter: the agency has

failed to promote appellant to a GS-12 since 1991. The fourteen events

are merely evidence or background information to that claim. The agency

should have treated this as one allegation. Appellant has received EEO

counseling on this issue. Therefore, dismissal of this allegation for

failure to receive EEO counseling was improper. The agency's contention

that appellant may be trying to raise a class complaint has been denied

by appellant on appeal.

EEOC Regulation 29 C.F.R. �1614.107(g) provides that the agency shall

dismiss any portion of a complaint:

Where the agency has provided the complainant with a written request to

provide relevant information or otherwise proceed with the complaint,

and the complainant has failed to respond to the request within 15

days of its receipt or the complainant's response does not address the

agency's request, provided that the request included a notice of the

proposed dismissal. Instead of dismissing for failure to cooperate,

the complaint may be adjudicated if sufficient information for that

purpose is available.

The Commission finds that dismissal of the failure to promote allegation

for failure to cooperate was improper. Appellant sufficiently responded

to the agency's request for information regarding her complaint.

Although the agency noted that appellant filed a civil action on the

same matter, the agency did not dismiss the instant complaint on such

grounds and the record does not contain a copy of the civil action.

Therefore, we do not address whether the instant complaint may be

properly dismissed on the grounds that it is the basis of a pending or

decided civil action. The Commission also notes that the Commission is

not addressing whether the instant complaint is properly dismissible on

other grounds not discussed in this decision and not specifically relied

upon by the agency in its decision.

The agency's decision dismissing the complaint is REVERSED and we REMAND

the complaint to the agency for further processing in accordance with

this decision and applicable regulations.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegations within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

of the appropriate rights within one hundred fifty (150) calendar days

of the date this decision becomes final, unless the matter is otherwise

resolved prior to that time. If the appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgement to appellant and a copy

of the notice that transmits the investigative file and notice of rights

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:

10/28/1999

DATE Carlton M. Hadden, Acting Director

1 The record reflects that appellant's complaint is comprised of the

consolidation of two separate complaints that were identified as Complaint

Nos. 9709 and 9712.