Joanne Owens, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionApr 24, 2000
01a00603 (E.E.O.C. Apr. 24, 2000)

01a00603

04-24-2000

Joanne Owens, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Joanne Owens, )

Complainant, )

) Appeal Nos. 01995210

v. ) 01A00603

) Agency Nos. BKHBFO980810250

Louis Caldera, ) BKHBFO981110270

Secretary, )

Department of the Army, )

Agency. )

____________________________________)

DECISION

On June 14 and October 25, 1999, complainant filed timely appeals <1>

with this Commission from two final decisions by the agency, dated May

21 and September 10, 1999, finding that the agency was in compliance

with the terms of a December 10, 1998 settlement agreement into which

the parties had entered.<2> See 64 Fed. Reg. 37,644, 37,659, 37,660

(1999)(to be codified and hereinafter referred to as EEOC Regulation 29

C.F.R. � 1614.402); 29 C.F.R. � 1614.504(b); and 64 Fed. Reg. 37,644,

37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

On appeal from the June 14, 1999 agency decision, the complainant contends

only that she continues to be subjected to a hostile work environment by

a fellow employee who communicates with the complainant daily through

facsimile transmission. However, the settlement agreement does not

address the situation of the complainant and her coworker. Specifically,

the agreement does not provide that the complainant would not have any

contact with the coworker. Therefore, in addition to addressing the

complainant's noncompliance allegation, the agency should have referred

the complainant to an EEO counselor when she raised the harassment claim

in her April 23, 1999 letter.

After a review of the record on appeal, including the appeal submissions

of the parties, the Commission finds that the complainant has not shown

that the agency failed to comply with the terms of the settlement

agreement. Therefore, the Commission affirms the agency's June 14,

1999 decision.

The Commission also finds that the agency erred when it issued the second

agency decision instead of referring the hostile work environment claim

for EEO counseling. On appeal the agency contends that it issued the

decision in response to a second letter that alleged noncompliance with

the same agreement. However, in response to the Commission's request

that the agency submit a complete copy of the record in appeal number

01A00603, the agency submitted only one letter, dated April 23, 1999,

alleging noncompliance with the terms of the agreement. Accordingly, the

Commission vacates the September 10, 1999 agency decision as improperly

issued.

For the reasons stated above, the Commission AFFIRMS the agency's May 21

decision, VACATES the agency's September 10, 1999 decision, and REMANDS

the complainant's April 23, 1999 hostile work environment claim to the

agency for EEO counseling.

ORDER

Within thirty (30) calendar days of the date this decision becomes final,

the agency shall offer in writing to provide the complainant with EEO

counseling regarding her April 23, 1999 hostile work environment claim,

unless the agency already has provide EEO counseling on this claim.

A copy of the agency's written offer of counseling, or proof of prior

counseling on the April 23, 1999 hostile work environment claim, 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 (T0400)

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:

April 24, 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,

and the agency on:

DATE Equal Employment Assistant1There is no support in the record

for the agency's contention that the complainant's attorney received

the September 10, 1999 agency decision by facsimile transmission on

September 10, 1999. The decision indicates that it was to be sent by

facsimile transmission; however there is no evidence in the record that

a facsimile was actually transmitted to, and received by, the attorney

on September 10, 1999.

2On 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.