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