Diana Acquaye, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionApr 10, 2000
01990329 (E.E.O.C. Apr. 10, 2000)

01990329

04-10-2000

Diana Acquaye, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Diana Acquaye v. Department of the Army

01990329

April 10, 2000

Diana Acquaye, )

Complainant, )

)

v. ) Appeal No. 01990329

Louis Caldera, ) Agency No. BODV9805I0510

Secretary, )

Department of the Army, )

Agency. )

____________________________________)

DECISION

On September 14, 1998, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) dated August 17, 1998,

pertaining to her complaint of unlawful employment discrimination. <1>

Because the agency failed to submit a copy of the certified receipt,

or any evidence, indicating the date complainant received the final

agency decision, the Commission will exercise its discretion and accept

complainant's appeal as timely. See 64 Fed. Reg. 37, 644, 37, 656

(1999)(to be codified as 29 C.F.R. � 1614.402(a)).

The agency dismissed complainant's complaint on the grounds that she

failed to provide evidence that she was given written permission to

file her complaint at a later date. In addition, the agency claimed

that complainant waited a year before initiating an EEO complaint.

On appeal, complainant states that she went to the EEO Office to file

a formal complaint and was told by the EEO Officer that she could come

back and file the complaint at a later date. Complainant argues that her

complaint should not be dismissed since the EEO Officer told her that by

providing the officer with her information, she was "stopping the clock"

on her case and was assured that she could file later.

We note that the record does not contain a copy of an EEO Counselor's

report or a formal EEO complaint. In response to the Commission's

request for this information, the agency replied that complainant never

filed a formal complaint in this case. Thus, there is no evidence to

indicate the formal basis(es) of discrimination, the issues involved

in complainant's complaint, or the initial date of the agency action

complainant is alleging to be discriminatory. We note that in the

agency's final decision dismissing complainant's complaint, the agency

stated that a year transpired before complainant initiated an EEO

complaint. The Commission is uncertain whether this statement refers to

a delay in initiating initial contact with an EEO Counselor or a delay

in filing a complaint (either informally or formally). The record

contains a May 7, 1998 memorandum entitled Aggrieved Person's Rights

and Responsibilities which informs complainant of her right to pursue a

discrimination complaint and her obligation to contact an EEO Counselor.

We note that this memorandum may constitute the required notice under 64

Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter referred

to as 29 C.F.R. � 1614.105(b)(1)), which could indicate that this is

the date of complainant's initial counselor contact. We find, however,

that the record does not contain sufficient evidence for the Commission

to reach a final decision in this case.

For the foregoing reasons, the Commission hereby VACATES the final agency

decision and REMANDS this matter for further processing in accordance

with the Commission's ORDER set forth below.

ORDER

The agency is ORDERED to take the following actions:

Conduct a supplemental investigation regarding complainant's allegation

of discrimination, including identifying the agency action alleged to be

discriminatory, the bases of discrimination, and the date of the alleged

discriminatory action;

Obtain a statement from the EEO Officer alleged to have given complainant

permission to file her complaint late and a statement from complainant

regarding her conversation with the EEO Officer; and any other relevant

evidence regarding the contact between complainant and the EEO Officer;

Within forty-five (45) calendar days of the date this decision becomes

final, the agency shall issue a new final agency decision or notify

complainant of the claims to be processed.

A copy of the agency's new final decision or notice of processing must

be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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

complainant. If the agency does not comply with the Commission's order,

the complainant may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). The complainant 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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �

1614.503(g). Alternatively, the complainant 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. �� 1614.407

and 1614.408. 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 complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

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 (R0400)

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 WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. 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 (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 10, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1On 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.