01990644
10-08-1999
Glory McElveen, )
Appellant, )
)
v. )
) Appeal No. 01990644
Louis Caldera, ) Agency No.BGANFO9803I0250
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
On October 29, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated September 30, 1998, which
the agency issued pursuant to EEOC Regulation 29 C.F.R. �1614.107(b).
The Commission accepts the appellant's appeal in accordance with EEOC
Order No. 960, as amended.
On July 30, 1998 appellant filed a formal complaint alleging she was
discriminated against on the bases of sex (female) and reprisal when:
Management reinstated SSG �A� as appellant's supervisor on May 21, 1998;
Management failed to promote appellant for the past six years; and,
Appellant's immediate supervisor repeatedly harassed appellant because
she was angry that appellant filed an EEO complaint.
The agency dismissed the complaint for raising matters that had not
been brought to the attention of an EEO counselor and were not like or
related to a matter that has been brought to the attention of a counselor.
The FAD also noted that the counselor gave appellant her final interview
on April 28, 1998. On July 17, 1998 appellant notified the EEO Officer
that she had not received her Notice of Right to File, even though her
landlord signed for it on or about May 6, 1998. The officer provided
appellant with the notice on July 17, 1998, and appellant thereafter
timely filed her complaint.
On appeal, appellant, through her attorney, argues that the issues of
sexual harassment and lack of promotion were raised with the counselor.
Further, appellant contends that on July 17, 1998 she submitted an
informal complaint regarding reprisal to the EEO Officer, but the
matter was never assigned to a counselor. According to appellant,
the EEO officer mislead and avoided her.
In response, the agency states that the only allegation raised with
the counselor involved sexual harassment based on an incident on March
19, 1998 with SSG �A�. The agency argues that allegations (1) and (3)
occurred after the final review on April 28, 1998, and therefore could
not have been discussed with the counselor. Moreover, on October 30, 1998
appellant initiated a request for counseling on the basis of reprisal and
harassment. The final interview, on December 10, 1998, included issues of
promotion, harassment by her immediate supervisor and other new matters.
EEOC Regulation 29 C.F.R. �1614.107(b) states, in pertinent part, that
an agency shall dismiss a complaint or portion thereof which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling. A later allegation or complaint is "like or related"
to the original complaint if the later allegation or complaint adds
to or clarifies the original complaint and could have reasonably been
expected to grow out of the original complaint during the investigation.
See Scher v. USPS, EEOC Request No. 05940702 (May 30, 1995); Calhoun
v. United States Postal Service, EEOC Request No. 05891068 (March 8,
1990); Webber v. Department of Health and Human Services, EEOC Appeal
No. 01900902 (February 28, 1990).
In the instant case, appellant's complaint alleged that she was
subjected to discrimination based on incidents regarding reinstatement
of a supervisor, promotion, and harassment based on reprisal. Upon our
review of the record, we find that the issues were not brought to the
attention of a counselor and were not like or related to the matter that
had been brought to the attention of a counselor. Therefore, we find
that the agency properly dismissed appellant's complaint. Accordingly,
the agency's decision dismissing the complaint is AFFIRMED.
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 (S0993)
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:
October 8, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations