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.