Cheryl Ells, Complainant,v.William M. Daley, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionApr 12, 2000
01984698 (E.E.O.C. Apr. 12, 2000)

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complainant had withdrawn the matter on October 11, 1997 prior to filing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The Commission has held that once a complainant has withdrawn an informal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