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.