01980458_r
11-18-1999
Frances M. Sermeno, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Frances M. Sermeno, )
Complainant, )
)
)
v. ) Appeal No. 01980458
) Agency No. BPDWFO9709H0270
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
On October 17, 1997, complainant filed a timely appeal of a September 18,
1997 final agency decision, which was received by her on September 19,
1997, dismissing her complaint for failure to bring the matter to the
attention of an EEO Counselor.<1>
The record indicates that on July 8, 1997, complainant contacted
an EEO Counselor alleging discrimination when on June 27, 1997, she
was terminated from her temporary position as a medical clerk. In a
memorandum dated July 9, 1997, the EEO Counselor stated that complainant
provided her with eight memoranda dated from March 7, 1997 through
her termination of June 27, 1997, involving her unsatisfactory work
performance during that period of time. Unable to resolve the matters
informally, complainant filed her August 27, 1997 formal complaint
alleging discrimination concerning assignments, working conditions, and
training which affected her termination. As relief, complainant sought
lost pay due to the termination which occurred prior to February 3,
1998, the date when her temporary position with the agency expired.
In its final decision, the agency identified the claims of complainant's
complaint as whether complainant was discriminated against concerning
training, reassignment of job, duty assignments, and working conditions.
The agency found that complainant failed to raise these matters during
EEO counseling, and the only issue she raised during EEO counseling was
the June 27, 1997 termination.
Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.107(a)(2)) provides that prior to a request
for a hearing in a case, the agency shall dismiss an entire complaint
that raises a matter that has not been brought to the attention of a
Counselor and is not like or related to a matter that has been brought
to the attention of a Counselor.
Upon review, we find that the main issue in complainant's complaint
involves her June 27, 1997 termination. Indeed, as relief, complainant
sought lost pay due to the alleged discriminatory termination. We note,
however, that the agency failed to address the termination claim. While
in its final decision, the agency acknowledges that complainant raised
the issue of her termination with the EEO Counselor, the agency fails to
indicate that the issue was accepted and is silent as to its disposition.
Since we consider the agency's omission of a claim as the dismissal of
such, we find that the agency failed to provide proper grounds for such
dismissal under the regulations. See 64 Fed. Reg. 37,644, 37,657 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. �1614.110).
Therefore, we find that the agency's decision dismissing the termination
claim by failing to address such was improper. See Knapp v. Department
of the Navy, EEOC Request No. 05940662 (January 23, 1995).
Upon review, we find that complainant's claims concerning work
assignments, training, and working conditions are like or related to her
termination claim which was brought to the attention of the EEO Counselor.
The letter of the termination at issue indicates that complainant was
terminated due to her unsatisfactory work performance since February
3, 1997, when she was hired as a temporary medical clerk. Complainant
indicated in her complaint that her unsatisfactory work performance was
due to the alleged discriminatory assignments, training, and working
conditions. Accordingly, the agency's final decision is REVERSED,
and the complaint is REMANDED to the agency for further processing in
accordance with this decision and applicable regulations.
ORDER
The agency is ORDERED to process the remanded complaint in accordance
with 64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.108). Specifically, the agency shall
acknowledge to complainant that it has received the June 27, 1997
termination claim, including the claims concerning work assignments,
training, and working conditions, 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
specifically identifying the termination issue, including the claims
concerning work assignments, training, and working conditions, of the
complaint 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 (K1199)
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 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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
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:
November 18, 1999
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
__________________________
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.