01A10425
02-01-2001
Dieldra J. Square, Complainant, v. Colin L. Powell, Secretary, Department of State, Agency.
Dieldra J. Square v. Department of State
01A10425
February 1, 2001
.
Dieldra J. Square,
Complainant,
v.
Colin L. Powell,
Secretary,
Department of State,
Agency.
Appeal No. 01A10425
Agency No. 99-51
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision, dated September 15, 2000, pertaining to her complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.<1>
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
In a complaint dated August 19, 1999, complainant claimed that she was
discriminated against based on sex, race and reprisal when on July
2, 1999, she was not selected for the Passport Specialist position,
GS-967-5/7/9. The agency issued a decision on September 21, 1999,
dismissing the complaint on the grounds that the matter was not brought
to the attention of an EEO Counselor. Complainant appealed the decision
to the Commission.
In the prior decision, the Commission concluded that the record was
incomplete and therefore a decision could not be rendered. The agency
was ordered to conduct a supplemental investigation wherein it would
address: (1) whether complainant called an EEO Counselor in an attempt
to initiate contact; and (2) when she received the notice informing
her of her non-selection. Square v. Department of State, EEOC Appeal
No. 01A00565 (April 14, 2000).
In response to the Commission's order, the agency conducted a
supplemental investigation and issued another decision. The September
15, 2000 decision again determined that complainant failed to raise the
matters in her complaint with an EEO Counselor. Relying upon information
collected through several interrogatories, the agency found complainant's
justifications to be insufficient. Specifically, the agency noted that
complainant claimed that she tried to contact several Counselors between
May and July 1999. Complainant admitted that she named Counselor A on her
complaint, but never spoke with her. According to complainant, she left
messages and never received a response. Further, complainant asserted
that the relocation of her office; sequestered jury service in June 1999;
and training classes impaired her ability to contact a Counselor.
Complainant's assertions were disputed by the three Counselors named in
her responses. The three Counselors denied that she contacted them.
Further, the Regional Director of the Passport Agency acknowledged
that the office was relocated in April 1999, and that although some
confusion regarding telephones occurred, employees always had access
to a telephone. Regarding when complainant received notice of her
non-selection, complainant contends that she never received a written
notification but learned by �word of mouth� in May 1999. In contrast,
the Personnel Management Specialist stated that agency policies
were followed and complainant was sent a letter, dated July 2, 1999,
notifying her of the non-selection. The Specialist asserted that there
was no evidence that the letter was returned in the mail. Based on
the information obtained from the interrogatories, and complainant's
prior experience with the EEO process, the agency was not persuaded
that complainant's failure to contact a Counselor should be excused.
Concluding that complainant should have contacted an EEO Counselor,
the agency dismissed the complaint.
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling.
We find that a review of the record supports the agency's determination
that complainant failed to contact an EEO Counselor regarding the matters
in her complaint. Further, we are not persuaded by complainant's reasons
for failing to obtain counseling. As noted above, all the counselors
named by complainant reported no record of a call from complainant.
Even assuming arguendo that there existed a problem with telephones,
other means were available for contacting the EEO office. Moreover,
we do not find that jury duty or training prevented complainant from
contacting a Counselor. We also note that complainant has previously
filed complaints and acknowledges an understanding of EEO procedures.
Accordingly, based on a review of the entire record, including arguments
and evidence not specifically discussed herein, the agency's decision
to dismiss the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 1, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.