01985246
02-10-2000
Iolanda B. Gordon, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Iolanda B. Gordon v. Department of the Air Force
01985246
February 10, 2000
Iolanda B. Gordon, )
Complainant, )
) Appeal No. 01985246
v. ) Agency No. PVIL98003
)
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
)
DECISION
INTRODUCTION
Iolanda B. Gordon (complainant) timely filed an appeal on June 19,
1998 with the Equal Employment Opportunity Commission (the Commission)
from a final agency decision (FAD), dated May 20, 1998, concerning a
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq.<1> The Commission hereby accepts the appeal in accordance with
EEOC Order No. 960.001, as amended.
ISSUE PRESENTED
Whether the agency correctly dismissed the complaint, in part for raising
the same matter in a negotiated grievance, in part for untimely EEO
Counselor contact, in part for failure to raise the issue with an EEO
Counselor, and in part for failure to state a claim.
BACKGROUND
Complainant initially contacted an EEO Counselor on March 16, 1998.
According to the EEO Counselor's Report (the Report), complainant
alleged discrimination on the bases of race (Caucasian), national
origin (Italian), discrimination, retaliation, and slander when: 1)
on March 1, 1996, she was not given consideration to perform light
duties because of a foot fracture and a back problem; and 2) she was
called into the office by S-1, a supervisor, and told that she was
being placed on administrative leave for a day; and was given a copy of
her 971, which included a statement that she could not return to work
until she could perform her job without limitations. The Report lists
reassignment, reprisal, and disability as "Actions Involved in Complaint."
Complainant requested the following remedies: 1) sick leave restored; 2)
annual leave restored; 3) back pay; 4) job within physical limitations;
5) compensatory damages in the amount of $275,000 to cover medical bills,
psychological bills, attorney's fees, inconvenience cost, and pain and
suffering; and 6) punitive damages.
The record contains a formal complaint, which was signed by the agency on
April 22, 1998, but not by complainant because she was out of the country.
Under the section "How Were You Discriminated Against," it states,
"see attached - physical disability and perjury." It appears from a
review of the record that the document attached to the formal complaint
was a letter dated February 23, 1998 from complainant.
The final agency decision (FAD), dated May 20, 1998 dismissed
complainant's entire complaint. Claim (1) was dismissed because
complainant filed a negotiated grievance on the same matter, and a part
of the claim was untimely filed. Claim (2) was dismissed for failure
to raise the issue of reprisal with the EEO Counselor. The claims
of slander and perjury were dismissed for failure to state a claim.
This appeal followed. In her statement on appeal, complainant does not
assert that her complaint did not contain the particular issues which the
agency discussed in its FAD. She does state, however, that the agency did
not consider, in its FAD, some of the items that were in her complaint.
Complainant is not specific in her statement on appeal what these
particular items are. She does, however, mention within her narrative
that: 1) on May 11, 1998, she was "again threatened with termination and
ordered to report for a physical examination"; and 2) on June 3, 1998,
she was ordered to return to duty and again threatened with termination.
ANALYSIS AND FINDINGS
In 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 29 C.F.R.
� 1614.107(a)(4)), the regulations provide, in pertinent part, that the
agency shall dismiss an entire complaint where the complainant has raised
the matter in a negotiated grievance procedure that permits claims of
discrimination. We find that the agency correctly dismissed the portion
of claim (1) referring to complainant's foot fracture. The record shows
that complainant filed a negotiated grievance on the same matter.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) provides, in pertinent part,
that an aggrieved person must initiate contact with an EEO Counselor
within 45 days of the date of the matter alleged to be discriminatory or
within 45 days of the effective date of the personnel action. We find
that the agency correctly dismissed the portion of claim (1) referring
to complainant's back problem. The record demonstrates that claim
(1) occurred on March 1, 1996, but that complainant did not contact
an EEO Counselor about the matter until March 16, 1998, more than two
years later.
In 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(a)(1)), the regulations provide,
in pertinent part, that the agency shall dismiss an entire complaint
that fails to state a claim under � 1614.103. We agree with the agency
that complainant's claims of perjury and slander fail to state a claim
because these types of claims are not covered by EEOC Regulations �
1614.103 as matters that the Commission can address.
In 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(a)(2)), the regulations provide that
the agency shall dismiss an entire complaint that raises a matter that
has not been brought to the attention of a Counselor. The Commission
finds that the agency incorrectly dismissed claim (2) for failure to
bring the matter to the attention of an EEO Counselor. A review of the
record shows that complainant did, in fact, bring the matters contained in
claim (2) and reprisal as a basis to the attention of an EEO Counselor.
From a review of the record, we can find no other incidents of
discrimination contained in the formal complaint that were not addressed
in the FAD. As to the two claims of discrimination that complainant
mentioned on appeal, these incidents occurred on May 11, 1998 and June
3, 1998, after the formal complaint was filed and were brought up for
the first time on appeal to us. They are, therefore, not part of the
instant complaint.<2>
CONCLUSION
Accordingly, the decision of the agency to dismiss claim (1), and the
perjury and slander claims was proper and is AFFIRMED. The decision of
the agency to dismiss claim (2) is improper and is REVERSED. Claim (2)
is hereby REMANDED to the agency in accordance with the ORDER below.
ORDER (E1199)
The agency is ORDERED to process the remanded claim 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). The agency shall acknowledge to
the complainant that it has received the remanded claim 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 an
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
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:
02-10-00
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:
Date ________________________
1 On 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.
2 Complainant is advised that if she wishes to pursue, through the EEO
process, the additional reprisal allegations she raised for the first time
on appeal, she shall initiate contact with an EEO counselor within 15 days
after she receives this decision. The Commission advises the agency that
if complainant seeks EEO counseling regarding the new allegations within
the above 15 day period, the date complainant filed the appeal statement
in which she raised these claims with the agency shall be deemed to
be date of the initial EEO contact, unless she previously contacted
a counselor regarding these matters, in which case the earlier date
would serve as the EEO counselor contact date. Cf. Alexander J. Oatsha
v. Department of the Navy, EEOC Request No. 05970201 (January 16, 1998).