01984698
04-12-2000
Cheryl Ells, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Cheryl Ells v. Department of Commerce
01984698
April 12, 2000
Cheryl Ells, )
Complainant, )
)
v. ) Appeal No. 01984698
) Agency No. 97-54-0299
William M. Daley, )
Secretary, )
Department of Commerce, )
Agency. )
____________________________________)
DECISION
On June 2, 1998, complainant filed a timely appeal with this Commission
from a final agency decision pertaining to her complaint of unlawful
employment discrimination of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq. <1> The agency determined that
complainant had withdrawn the matter on October 11, 1997 prior to filing
her formal complaint on December 29, 1997.
A review of the record indicates that after complainant initiated EEO
counseling on May 6, 1997, her attorney notified the agency, by letter
dated May 27, 1997, that his firm would be representing complainant.
On September 8, 1997, complainant's EEO Counselor issued complainant
a notice of right to file a formal complaint, but neglected to send a
copy to complainant's representative. On October 11, 1997, complainant
returned the signed and dated formal complaint form to the Counselor,
with the statement, "I no longer wish to file this complaint" written
on the bottom of the form. After learning of complainant's withdrawal,
complainant's attorney filed complainant's formal complaint on December
29, 1997, asserting that he received a notice of right to file on December
15, 1997.
On appeal and in a letter accompanying the formal complaint, complainant's
attorney argues that complainant retained the right to file a formal
complaint because complainant's attorney was not sent a notice of the
right to file and the agency stopped processing of the complaint without
informing complainant's attorney of the agency's direct contact with
complainant. Complainant's attorney also contends that the agency sent
complainant a withdrawal form without advising complainant's attorney.
The Commission has held that once a complainant has withdrawn an informal
complaint, a complainant may not reactivate the EEO process by filing
a formal complaint on the same issue, absent a showing of coercion.
Allen v. Department of Defense, EEOC Request No. 05940168 (May 25,
1995). In the present case, we find that the agency properly dismissed
complainant's complaint because it had previously been withdrawn.
Complainant is responsible for proceeding with a complaint whether or
not she has designated a representative. 29 C.F.R. � 1614.605(e).
Here, the record shows complainant withdrew her informal complaint
on October 11, 1997. Despite her attorney's assertions, there is no
evidence showing that complainant was in anyway coerced into withdrawing
her informal EEO complaint.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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. 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 (Z1199)
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:
April 12, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov