01986686
11-04-1999
Dolores J. Frissell, Appellant, v. William S. Cohen, Secretary, Department of Defense (Defense Finance and Accounting Service), Agency.
Dolores J. Frissell v. Department of Defense
01986686
November 4, 1999
Dolores J. Frissell, )
Appellant, )
)
v. ) Appeal No. 01986686
) Agency No. DFAS-CL-0000-96-010
William S. Cohen, )
Secretary, )
Department of Defense )
(Defense Finance and )
Accounting Service), )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated August 10, 1998, which the agency issued pursuant to EEOC
Regulation 29 C.F.R. �1614.107(h). The Commission accepts the appellant's
appeal in accordance with EEOC Order No. 960, as amended.
The appellant alleged in her July 8, 1996 complaint that the agency did
not select her for the position of Paralegal Specialist, GS-0959-5/7,
target GS-0959-09, under vacancy announcement 285 of 1995.
The agency dismissed the appellant's complaint for failure to accept a
certified offer of full relief dated June 11, 1998.
EEOC Regulation 29 C.F.R. �1614.107(h) provides that an agency shall
dismiss a complaint if prior to the issuance of the notice required by
29 C.F.R. �1614.108(f), the complainant refuses to accept a certified
offer of full relief. EEOC Regulation 29 C.F.R. �1614.108(f) requires
the agency to notify the complainant within 180 days from the filing
of the complaint, or within the time period contain in an order from
the Office of Federal Operations on an appeal, that an investigation has
been completed. "Full relief" is defined as that relief which would have
been available to a complainant if she had prevailed on every issue in her
complaint. Stewart v. Department of the Navy, EEOC Request No. 05970657
(February 11, 1999), citing Albemarle Paper Co. v. Moody, 422 U.S. 405
(1975).
The Commission finds that the agency's June 11, 1998 offer was untimely.
Specifically, the June 11, 1998 offer was issued more than 180 days after
the filing of the appellant's complaint on July 8, 1996. See McCormick
v. USPS, EEOC Request No. 05970054 (June 11, 1998).
Alternatively, the Commission finds that the agency's offer did not
constitute full relief. The Commission has previously determined
that if discrimination had been found in the matter that appellant
raised in the instant complaint, appellant would have been entitled to
placement in the position for which she was not selected, from the date
of her non-selection in April 1996. Frissell v. Department of Defense,
EEOC Appeal No. 01972981 (December 18, 1997). Here, the offer did not
provide for the retroactive placement of the appellant in the position,
effective on the date the selectee was placed in the position in April
1996. Accordingly, the Commission REVERSES the agency's dismissal of
the appellant's July 8, 1996 complaint and REMANDS the complaint for
processing as ORDERED below.
ORDER (E1092)
The agency is ORDERED to issue to the appellant a copy of the
investigative file and to notify appellant of the appropriate rights
as required by 29 C.F.R. �1614.108(f) and the Commission's Order of
December 18, 1997.
A copy of the notice that transmits the investigative file and notice
of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
11/04/1999
______________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations