01982369
10-15-1999
Charlease M. Joloza, Appellant, v. Richard W. Riley, Secretary, Department of Education, Agency.
Charlease M. Joloza v. Department of Education
01982369
October 15, 1999
Charlease M. Joloza, )
Appellant, )
)
v. ) Appeal No. 01982369
) Agency No. ED-9739020
Richard W. Riley, )
Secretary, )
Department of Education, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The final agency decision was issued on January
26, 1998. The appeal was postmarked January 30, 1998. Accordingly,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue presented on appeal is whether the agency properly dismissed
certain allegations of appellant's complaint.
BACKGROUND
Appellant initiated contact with an EEO Counselor on April 28, 1997.
On June 23, 1997, appellant filed a formal EEO complaint wherein she
alleged that she had been discriminated against on the bases of her race
(black) and in reprisal for her previous EEO activity when on April 22,
1997, she was orally admonished by her supervisor for a statement made on
April 10, 1997, in which she was alleged to have stated that she did "not
suck white ass." The agency interpreted the complaint as also stating
separate allegations with regard to appellant being denied due process
under law when her supervisor did not advise her of her right to union
representation during the oral admonishment. Appellant also claimed
that she was retaliated against because of her previous EEO activity
and because she did not attend her supervisor's boyfriend's going away
party. Further, appellant claimed that the agency conducted an improper
investigation in that it failed to afford her an opportunity to defend
herself with regard to the accusation made against her. Appellant alleged
that she was subjected to disparate treatment by virtue of the fact that
agency officials accepted the unfounded accusations of a white female.
Appellant also claimed that the incident of April 22, 1997, constituted
an intentional infliction of emotional distress, as well as libel and
slander against her. Appellant further alleged that she was subjected
to harassment by the oral admonishment on April 22, 1997, and by the
investigation and rumors that preceded the oral admonishment. Finally,
the agency interpreted the complaint as alleging that appellant was
subjected to race discrimination and the creation of a hostile work
environment.
In a letter dated October 16, 1997, the agency informed appellant that it
considered all of her allegations to be related to the oral admonishment.
The agency stated that the alleged violations would be investigated
not as separate and unique allegations, but as they related to the
oral admonishment. Appellant's response was requested within fifteen
days of her receipt of the letter if she disagreed with the agency's
understanding of the complaint. Appellant was informed that failure to
respond to the letter may result in dismissal of her complaint.
When the October 16, 1997 letter was returned unclaimed, the agency
again sent a copy of the October 16, 1997 correspondence to appellant.
The agency stated that this new forwarding of the original letter would
be considered received on December 13, 1997.
In its final decision, the agency dismissed all allegations except for
the oral admonishment on the grounds that appellant failed to cooperate.
The agency stated that although some of appellant's allegations may be
pertinent to the oral admonishment, it remains unclear why appellant
interprets them as separate and distinct acts of discrimination.
The agency determined that appellant failed to respond to its request
for a clarification of whether she agreed with its interpretation of
her allegations. The agency noted that appellant could still use the
dismissed allegations as background for the allegation concerning the
oral admonishment.
On appeal, appellant contends that she told the EEO Office that she
never received the original October 16, 1997 correspondence. Appellant
claims that she did respond to this correspondence after she received
the second mailing of the correspondence. In support of her position,
appellant submits a letter dated January 1, 1998, that was addressed
to the agency. Appellant stated in this letter that she received the
October 16, 1997 correspondence after it was sent on December 12, 1997.
Appellant claimed that all of her allegations needed to be investigated
in order to understand the full impact of the discrimination against her.
In response, the agency asserts that appellant did not respond to
its letter of December 8, 1997. The agency states that it accepted
the allegation of discrimination with regard to the oral admonishment.
The agency notes that the issue was investigated and is pending a hearing
before the Commission. According to the agency, it submitted a Motion for
Findings and Conclusions Without a Hearing on the grounds that appellant
is not aggrieved by what she characterizes as an oral admonishment.
The agency requests that its dismissal of the allegations under review
in the instant appeal be affirmed on the grounds of failure to cooperate
and failure to state a claim since these allegations are derived from the
oral admonishment.
ANALYSIS AND FINDINGS
While the agency dismissed appellant's allegations on the grounds of
failure to cooperate, upon review, we find that the allegations are more
appropriately dismissed for stating the same claim. EEOC Regulation 29
C.F.R. �1614.107(a) provides that the agency shall dismiss a complaint
or a portion of a complaint that states the same claim that is pending
before or has been decided by the agency or Commission.
We find that the allegations dismissed by the agency state the same claim
as that pending before the agency. The agency accepted for investigation
the allegation that appellant received an oral admonishment from her
supervisor on April 22, 1997. The other issues set forth by appellant
are all related to the oral admonishment. The denial of due process,
libel, slander, the alleged harassment and hostile work environment,
the allegation of intentional infliction of emotional distress, and
the remaining issues raised by appellant all concern and arise out of
the oral admonishment. Accordingly, the agency's dismissal of these
allegations was proper and is AFFIRMED for the reasons set forth herein.
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 (S0993)
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. 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 (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:
October 15, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations