Janice M. Amos, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionOct 27, 1999
01973550 (E.E.O.C. Oct. 27, 1999)

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