Dolores J. Melick, Appellant,v.John Truesdale, Acting Chairman, National Labor Relations Board, Agency.

Equal Employment Opportunity CommissionSep 23, 1999
01990700 (E.E.O.C. Sep. 23, 1999)

01990700

09-23-1999

Dolores J. Melick, Appellant, v. John Truesdale, Acting Chairman, National Labor Relations Board, Agency.


Dolores J. Melick v. National Labor Relations Board

01990700

September 23, 1999

Dolores J. Melick, )

Appellant, )

)

v. )

) Appeal No. 01990700

John Truesdale, ) Agency No. HDQ-98-07

Acting Chairman, )

National Labor Relations )

Board, )

Agency. )

______________________________)

DECISION

On November 2, 1998, appellant filed a timely appeal with this Commission

from a final agency decision (FAD), dated October 1, 1998, partially

dismissing appellant's complaint. The Commission accepts the appellant's

appeal in accordance with EEOC Order No. 960, as amended.

On December 19, 1997 appellant contacted the EEO office regarding

allegations of discrimination based on sex (female) and reprisal.

Informal efforts to resolve appellant's concerns were unsuccessful.

Accordingly, on March 11, 1998 appellant filed a formal complaint

stating:

I filed a complaint of sex discrimination in June, 1993 (docketed as

93-15) because I was issued an evaluation which was scored lower than most

of the males in my section despite my work performance being superior to

the males. After I filed that complaint, my supervisor refused to issue

me any evaluations for the next 4 years. Recently, I was provided a

set of evaluations covering the past 5 years (including my most recent

rating by my new supervisor, [Supervisor A]), which rated my "Fully

Successful" over all and which read almost the same for each year.

Moreover, the 4 earlier evaluations completed by [Supervisor B] did

not even contain the reviewing individual's signature, as is normally

required for all evaluations.

I believe these belated evaluations, in addition to being far out of time,

underrated me in my critical elements in order to continue the pattern of

retaliation that started soon after I filed the initial complaint. All

the males in the unit received their evaluations far ahead of me and

almost all were scored higher than mine, despite my work performance

being better than theirs were. (At least this was true when I was

receiving work. After filing my complaint, [Supervisor B] would not

even give me responsible work to perform.) They, however, had not

filed an EEO complaint.

I believe [Supervisor A's] rating also underscored my performance for

retaliatory reasons. For example, he rates me "Fully Successful" in

documentation, which even [Supervisor B] had always rated me even higher

in and has historically been one of my strongest areas. I have not even

been given my performance standards yet for this evaluation year and the

year is half over. I believe [Supervisor A] sees it as his responsibility

to justify the Agency's prior "Fully Successful" ratings (as documented in

the 4 years of back rating which I was recently presented) by giving me

similar ratings and making it impossible to meet any specific objective

criteria that would compel him to award me higher rating on the elements

of my performance evaluation.

By letter dated April 30, 1998, the agency requested clarification of

the allegations raised in her complaint. Specifically, the agency asked

that appellant provide names, dates, reasons for her delayed counselor

contact, and incidents comprising the alleged pattern of retaliation.

Appellant responded in a letter dated May 15, 1998.

The FAD dismissed a portion of appellant's complaint for failure to

state a claim and failure to timely contact an EEO counselor.

Specifically, the agency stated that appellant was not an "aggrieved

employee" when she alleged that the agency failed to give her performance

standards for this evaluation year even though the year is half over.

The FAD defined a portion of appellant's complaint as alleging: (1) after

she filed complaint HDQ-93-15 she was not issued performance appraisals

for four years, (2) the performance appraisals she received on November

3, 1997 were "far out of time", (3) all the males in the unit received

their evaluations far ahead of her; and (4) after she filed complaint

HDQ-93-15 her supervisor would not give her responsible work to perform.

These allegations were dismissed for untimely counselor contact.

The agency accepted appellant's "remaining allegations, i.e. August 19,

1992 to October 17, 1997" for investigation.

In the instant case, we find it necessary to remand appellant's complaint.

Since appellant presented her complaint in a narrative form, instead

of identifying and numbering the specific agency actions she intended

to raise in her complaint, it is difficult to distinguish background

information from live allegations. We note that in their April 30,

1998 letter and the FAD, the agency quotes appellant's narrative form.

In dismissing for untimely counselor contact, the agency identifies and

numbers four allegations. However, it is unclear whether appellant

intended to raise each of the allegations identified by the agency

as a separate allegation. In addition, it is unclear which particular

allegations are accepted. Therefore, on remand, the agency should request

that appellant clarify the specific agency actions she intended to raise

in her complaint, when those actions occurred and who was responsible.

Accordingly, the agency's decision to dismiss appellant's complaint

is VACATED for the reasons set forth herein. The complaint is hereby

REMANDED for further processing in accordance with this decision and

the applicable regulations.

ORDER

Within fifteen (15) calendar days of the date that this decision becomes

final, the agency shall request that appellant identify the specific

agency actions, including their respective dates and the responsible

officials, that she raised in her complaint of March 11, 1998, and provide

appellant with fifteen (15) calendar days to furnish said information.

Appellant should number her allegations, an only identify the matters

that she intended to raise as live allegations. Thereafter, the agency

shall issue a final decision and/or notice of processing with respect to

appellant's complaint. The foregoing actions, including the issuance

of the final decision and/or notice of processing, must be completed

within forty-five (45) calendar days of the date that this decision

becomes final. A copy of the final decision or notice of processing

must be submitted 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:

09/23/1999

___________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations