0120161016
04-26-2016
Elise S.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Commissary Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Elise S.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Appeal No. 0120161016
Agency Nos. DECA000192016 & DECA000062016
DECISION
Complainant filed an appeal with this Commission concerning 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Sales Store Checker (GS-03) at the Agency's MCAS Miramar Commissary in San Diego, California.
On November 27, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), color (Black), and age (50), which, due to a computer glitch, the Agency did not receive. See Agency No. DECA000062016. In December 2015, Complainant contacted an EEO Counselor with a related complaint, but did not formally file it. See Agency No. DECA000192016. The Agency did not become aware of Complainant's November 27, 2015 formal complaint until her representatives resubmitted it on January 14, 2016.
On January 29, 2016, Complainant's representatives submitted two appeals to the Agency and this Commission, which both appear to argue that Complainant's formal complaint filed on November 27, 2015 was timely. However, to date, there is no indication that the Agency issued a formal decision on Complainant's formal complaint or her other complaint initiated in December 2015.
On February 4, 2016, the Agency issued Complainant a Letter of Acceptance, and returned Complainant's appeals to her on the grounds that they were premature. The Letter of Acceptance informed Complainant that the Agency accepted her complaint filed November 27, 2015, as timely and consolidated it with Complainant's unfiled December 2015 complaint because the issues were sufficiently like or related.
Based on the records for both complaints and Complainant's January 28, 2016 "appeals" the Agency identified the following claims of race, sex, and age discrimination:
1. On August 20, 2015, she was issued a Letter of Reprimand for conduct unbecoming a Federal employee;
2. On October 7, 2015 during a meeting, she was offended by SS's inappropriate behavior and negative comments in the presence of management and union/human resource officials; and
3. On October 29, 2015, she was issued a Letter of Reprimand for conduct unbecoming a Federal employee and negligent performance of duty?"
The Letter of Acceptance also explains that Claims 2 and 3 were accepted for investigation and the process for assigning an investigator has been initiated and that Claim 1 was dismissed as untimely raised pursuant to 29 C.F.R. �1614.107(a)(1). The Agency notes Complainant will have appeal rights for the dismissal of Claim 1 once a Final Decision for the entire complaint is issued.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.401(a) requires that an appeal cannot be filed by a complainant until the agency issues a "final action or dismissal of a complaint." Complainant filed her appeal despite the fact that there is no indication that the Agency arrived at a final decision. Therefore, we find that Complainant's appeal is premature. See Cortwright v. Dep't of the Army, EEOC Appeal No. 01A11751 (July 15, 2003)
The record does not indicate that the Agency has taken final action on Complainant's complaint, nor does it indicate whether the Agency has given Complainant the option of requesting a hearing before an EEOC Administrative Judge or a final agency decision. It is unclear what Complainant was appealing. Complainant has not provided any additional submissions since the Agency, per the February 4, 2016 letter, informed it that two of her three claims would be investigated, and, although the Agency dismissed Claim 1, Complainant could appeal it with the remaining claims.
CONCLUSION
Complainant's appeal is DISMISSED as premature. Nonetheless, we REMAND the matter for further processing as set forth in the Order below.
ORDER
Per its February 4, 2016 Letter of Acceptance, the Agency is ordered to process the remanded claims (Claims 2 and 3) in accordance with 29 CF.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and 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
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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
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
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
April 26, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120161016
2
0120161016