01973550
10-27-1999
Janice M. Amos, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Janice M. Amos v. Department of the Navy
01973550
October 27, 1999
Janice M. Amos, )
Appellant, )
)
v. ) Appeal No. 01973550
) Agency No. 96-62271-008
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
___________________________________)
DECISION
Appellant filed the instant appeal from the agency's decision dated
December 5, 1996 dismissing a portion of appellant's complaint.
The agency accepted six allegations for investigation, identified
as allegations 2(a) - 2(f), on the basis of retaliation. However,
the agency dismissed the bases of race, color, national origin, and
disability, on the grounds that appellant failed to raise these bases
with an EEO Counselor. The Commission finds that appellant did not raise
the basis of national origin in her complaint and therefore we will not
address the agency's dismissal of the basis of national origin.
However, the Commission finds that because the bases of race, color, and
disability concerned the same underlying allegations which were raised
before an EEO Counselor on a different basis, the agency improperly
dismissed the bases of race, color, and disability from the complaint.
See 29 C.F.R. �1614.107(b). The Commission has previously held
that "[i]t is well established that EEO charges are to be liberally
construed to effectuate the purposes of the discrimination statutes
and the crucial role of the private litigant in the statutory scheme.
Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970); President
v. Vance, 627 F.2d 353 (D.C. Cir. 1980) (applying the Sanchez principles
to federal employees)." Raipal v. USPS, EEOC Request No. 05920037
(May 19, 1992). The crucial element in a charge of discrimination is
the set of facts alleged therein, not the complainant's conclusions
concerning the agency's motivation. Mahood v. Department of Defense,
EEOC Appeal No. 01941890 (May 2, 1994).
The agency also dismissed four allegations, identified as allegations
5(a) - 5(d). The Commission finds that the agency properly dismissed
the allegations identified as 5(a), 5(b), and 5(c) (all concerning the
union and the grievance process) for failing to state a claim pursuant
to �1614.107(a). These allegations either did not render appellant
aggrieved or ultimately concerned an interpretation and/or enforcement
of the collective bargaining agreement.
The Commission finds that the agency properly dismissed the allegation
identified as 5(d) (performance rating for fiscal year 1995/96)
for failing to raise this matter with an EEO Counselor pursuant to
�1614.107(b). Although appellant claims that she raised this issue with
an EEO Counselor, the EEO Counselor's report makes no mention of the
allegation and appellant has not submitted copies of any contemporaneous
correspondence with the EEO office showing she raised this allegation
with an EEO Counselor. Furthermore, allegation 5(d) is not like or
related to any other allegation she raised with an EEO Counselor.
The agency's decision dismissing the bases of race, color, and disability
discrimination is REVERSED and we REMAND these bases to the agency
for further processing in accordance with this decision and applicable
regulations. The agency's decision dismissing allegations 5(a) - 5(d)
is AFFIRMED.
ORDER
Within fifteen (15) days of the date that this decision becomes final,
the agency shall advise appellant in writing that the issue accepted
for investigation is whether it discriminated against her on the bases
of retaliation and race, color, and disability in the matters set forth
in allegations 2(a) - 2(f).
A copy of the agency's letter to appellant must be sent 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
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 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 (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:
10/27/1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations