Charlease M. Joloza, Appellant,v.Richard W. Riley, Secretary, Department of Education, Agency.

Equal Employment Opportunity CommissionOct 15, 1999
01982369 (E.E.O.C. Oct. 15, 1999)

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