01a00400
04-12-2000
Jerry G. Burgess, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Jerry G. Burgess, )
Complainant, )
)
v. ) Appeal No.01A00400
) Agency No.FO990J0060
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
The complainant timely filed an appeal with this Commission from a final
decision, dated September 9, 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 Commission finds that the agency erred when it dismissed the
complainant's complaint for failure to state a claim based on its view
of the merits of her claim. The Commission has repeatedly reversed
agencies' dismissals for failure to state a claim where the agency
based the dismissal on its view of the ultimate merit of the complaint
allegations. See, e.g., Franz v. Treasury, EEOC Request No. 05950734
(April 29, 1996) (agency's argument that the complainant was not
disparately treated went to the merit of his claim); Ernst v. Treasury,
EEOC Request No. 05950131 (March 7, 1996) (the agency's argument that the
denied detail was to a lower-grade position with fewer responsibilities
and less opportunities for promotion went to the merits of the complaint);
Hagan v. Department of Veterans Affairs, EEOC Request No. 05920709
(January 7, 1993) (agency wrongfully dismissed allegation of disparate
treatment in the payment of licensing fees based on the ground that the
agency could not pay an employee's licensing fees); Cann v. United
States Postal Service, EEOC Request No. 05920861 (December 31, 1992)
(agency wrongfully dismissed allegation that the agency failed to upgrade
an employee to full-time regular status on the ground that there were no
full time positions available to him under the terms of the collective
bargaining agreement); Ferns v. Department of the Army, EEOC Request
No. 05920597 (September 10, 1992) (agency's argument that the complainant
was ineligible for position goes to the merits of the complaint).
The Commission also finds that the final agency decision failed to address
the essence of the complainant's claim, that is, that her position
should be graded at the GS-13 level consistent with the results of an
agency desk audit. The claims identified in the final agency decision
should be viewed as factual allegations submitted in support of the
complainant's claim that the agency discriminated against her, and
continues to discriminate against her based on her sex, regarding the
classification of her position at the GS-12 level. This claim states
claims under Title VII of the Civil Rights Act of 1964, as amended,
and the Equal Pay Act.
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 12, 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, the complainant's representative
(if applicable), 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.