Jean P. Schneider, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionApr 11, 2000
01a00363 (E.E.O.C. Apr. 11, 2000)

01a00363

04-11-2000

Jean P. Schneider, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Jean P. Schneider, )

Complainant, )

)

v. ) Appeal No.01A00363

) Agency No.9908J0190

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

)

DECISION

The complainant timely filed an appeal with this Commission from a final

decision, dated September 13, 1999, which the agency issued pursuant

to 29 C.F.R. �1614.107.<1> The Commission accepts the complainant's

appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified

at 29 C.F.R. � 1614.405).

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to REVERSE the final agency decision.

The agency dismissed the complainant's performance appraisal claim

on the ground that the complainant previously had filed a written

grievance on the matter under a collective bargaining procedure that

permitted allegations of discrimination to be raised. The record

does not establish that the collective bargaining procedure permitted

allegations of discrimination to be raised and that the complainant filed

a written grievance prior to the date she filed her formal EEO complaint,

August 7, 1999. The Commission also observes that, according to the

agency's August 26, 1999 response to the complainant's grievance, the

complainant did not follow the first two steps of the grievance procedure.

Thus, the record does not establish that the complainant filed a timely

written grievance. See EEOC Management Directive (MD) 110, as revised

(November 9, 1999) at 5-22.

The agency also dismissed the complainant's hostile work environment

claim on the ground that only one incident was timely raised and that

incident did not rise to the level of harassment necessary to constitute a

hostile work environment claim. The Commission finds that two allegedly

harassing incidents were timely raised with the EEO counselor, the

May 15, 1999 incident recognized in the final agency decision and

the issuance of the allegedly discriminatory performance appraisal.

These two allegedly harassing incidents are sufficient to indicate

that the alleged hostile work environment was on-going at the time of

the complainant's EEO counselor contact. The Commission further finds

that the incidents described by the complainant in writing and by other

employees in the EEO Counselor's Report suggest that the complainant

may have been subjected to a hostile work environment allegedly based

on her sex. According, the Commission finds that the complainant has

raised a timely hostile work environment claim.

ORDER (E0400)

The agency is ORDERED to process the remanded claims 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 claims 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 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 (M0300)

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); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION

(R0400)

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 WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. 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 (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:

April 11, 2000

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 the complainant and the agency on:

DATE Equal Employment Assistant1On 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.