01994741
03-14-2000
John Engels, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
John Engels, )
Complainant, )
)
v. ) Appeal No. 01994741
Lawrence H. Summers, ) Agency No. 99-3072
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
On May 21, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by his attorney on April 26,
1999, pertaining to his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq. <1> In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (Caucasian), color (white), religion (Wesleyan),
sex (male), age (46), physical disability (respiratory asthma, hearing,
spinal injury), and in reprisal for prior EEO activity when:
In December 1992, complainant's Group Manager (GM1) pressed her right
breast in complainant's left ear and left side of his face;
On April 7, 1998, a second Group Manager (GM2) made remarks about
complainant's attitude;
On May 18, 1998, a third Group Manager (GM3) called complainant regarding
a case he had not worked on in over three years;
On May 18, 1998, GM3 assigned complainant thirty-five cases but in
an electronic mail message she said that she was assigning him twenty
cases;
On May 18, 1998, GM3 assigned complainant cases that were in another
revenue officer's territory;
During a POSH training session on June 9, 1998, GM2 introduced a female
revenue officer as �The Duchess of Drenth�;
On June 20, 1998, GM3 did not give complainant the opportunity to work
overtime at the Problem Solving Day at Traverse City;
On July 1, 1998, GM3 and GM1 asked the Revenue Officer (RO) what time
complainant left the post of duty on June 25, 1998;
During a group video showing on August 4, 1998, GM3 and GM1 laughed at
the appearance of two men in the video and made inappropriate comments
about them;
On September 25, 1998, complainant became aware that a permanent Grade
12 vacancy was going to be announced and that the position was being
moved from Muskegon to Grand Rapids Post of Duty (POD);
On September 27, 1998, complainant was told that he would receive a
temporary Grade 12 in Group 48;
On September 27, 1998, complainant discovered that some of the cases he
received were the same cases he had given back to GM3 when his temporary
promotion ended on April 28, 1998;
On September 28, 1998, GM1 accused complainant of not sending in his
entity report; she left a rude message on the government answering
machine and never called back to tell him she found his entity report or
gave him an apology for falsely accusing him of not sending his entity
report;
On October 2, 1998, GM1 came into complainant's cubicle and while
talking with him, she pressed the right side of her breast into his
left shoulder and upper arm area for approximately three to five seconds
until he pulled away;
On October 14, 1998, complainant received a rating on a case review
that he felt was lower than he deserved;
On October 28, 1998, a memorandum was issued to members of Group 48,
including complainant, which contained a �cc� annotation to �The Patron
Saint of Cases Closed� and the annotation �Multas Gratias Vobis Ago!�;
On October 28, 1998, at a group meeting in Holland, GM2 allegedly made
racial comments regarding the branch chief, inappropriate comments
relative to the EEO Officer, and references to �Playgirl� and �Playboy�
magazines;
On October 29, 1998, Person A came into complainant's cubicle twice
demanding that he leave his laptop computer. Complainant alleges that
she shouted down at him while he sat in his chair, stomped out of his
cubicle, slammed a drawer in her cubicle and then stomped up to the
sign-out board and left the POD;
On October 30, 1998, GM1 called complainant at home advising him that
he could bring his laptop on Monday; complainant alleges that GM1 told
him that GM2 called the branch chief; complainant alleges that this
incident shows a concerted effort by local management to discredit him
in the eyes of his branch chief;
On November 10, 1998, the EEO Officer allegedly violated complainant's
Privacy Act rights when she gave counsel a copy of a �confidential�
memorandum that had been prepared by complainant's representative
regarding the October 2, 1998 incident with GM1;
On November 20, 1998, Person B told complainant that Person A, Person C,
and Person D were really mad at him and to �watch his backside�;
On December 18, 1998, the RO told complainant that there was a moratorium
on issuing levies to taxpayers. Complainant alleges that his manager
did not advise him of the moratorium. Complainant alleges that if the
RO had not told him about the moratorium he would have sent out levies
and possibly been subjected to disciplinary action for doing so;
At a group meeting at the Grand Rapids POD on January 13, 1999, GM2 made
sexually offensive remarks. Complainant alleges that GM2 commented �I
don't care if there is no clitoris interruption, send both spouses the
notices,� and that someday they may do a �reverse vasectomy on the
Service�;
During complainant's lunch break on January 13, 1999, GM1 made �immature�
comments to complainant and Person E and stared at them as they sat at
their table attempting to ignore her. As they were leaving GM1 asked
�Are you guys ignoring me?� Complainant alleges that GM1 continually
stares at him when he is in the office. She allegedly looks at him
(from top to bottom) with a �hungry predatory look.� She also constantly
sings Johnny Engels (complainant's name) to the tune of the song �Johnny
Angel . . . How I love him� in front of others in the workplace;
On January 21, 1999, Person F advised complainant that she had been
involved in an altercation with Person A. Complainant alleges that
Person F told GM2 that the situation between she and Person A was
explosive and that he needed to talk to Person A;
On January 21, 1999, GM1 approached complainant by the elevator and
asked him �What are you doing sweat [sic] pea?�;
On January 22, 1999, complainant alleges that GM2 made inappropriate
comments relative to RRA 98. GM2 referred to �The sins of the past�
in referring to revenue officer misconduct prior to January 19, 1999;
and made a comment �if you were discovered to be with sin . . . (after
January 19, 1999)�;
On January 31, 1999, GM2 issued a memorandum to the group regarding
updating inventory priority lists with a �cc� annotation to �The Patron
Saint of Cases Closed� and the annotation �Multas Gratias Vobis Ago!�;
During a group meeting on February 8, 1999, GM2 made comments regarding
two temporary female laborers and a permanent male employee who
were unloading a truck. GM2 allegedly commented to the permanent
male employee, �You'd better slow down or they'll castrate you.
They're hourly,� and then laughed.
In addition, complainant claimed that as a result of these incidents he
was subjected to a hostile work environment.
The record shows that complainant filed a previous discrimination
complaint (Agency No. 98-3192) on May 22, 1998. In that complaint,
complainant raised several issues of harassment and non-selections
dating from 1987 until May 1998. The agency issued a final decision
dated September 4, 1998, in which it accepted for investigation issues
(1), (2), and (3) (non-selection for several GS-12 vacancies from
1991 to March 30, 1998) but dismissed the remaining allegations for
failure to state a timely raised harassment claim. Complainant filed
a timely appeal of the final agency decision (EEOC Appeal No. 01990023)
on September 28, 1998. In deciding complainant's appeal, the Commission
affirmed the agency's dismissal of complainant's harassment allegations
but reversed the agency's implicit dismissal of retaliation as a basis
for the accepted non-selection issues. Complainant filed a subsequent
Request for Reconsideration (EEOC Request No, 05A00239) in December
1999, which the Commission administratively closed on February 4, 2000,
pending final action by the agency on the remainder of the complaint.
The record reveals that complainant initiated EEO Counselor contact
regarding the present complaint on October 19, 1998. Complainant
contacted an EEO Counselor on October 19th in an attempt to amend his
first complaint (Agency No. 98-3192), but was told by the EEO Counselor
that he was not able to include additional allegations of discrimination
which had not been raised during informal EEO counseling. The EEO
Counselor advised complainant that he must seek informal EEO counseling
regarding the new allegations, which he did. The Notice of Right to File
a Discrimination Complaint was issued to complainant on December 18, 1998.
On December 29, 1998, complainant timely filed a formal EEO complaint.<2>
A final agency decision was issued on April 22, 1999, which dismissed
all the issues in the subject complaint on various grounds. The agency
dismissed issues (1), (2), and (10) on the grounds that these issues
stated the same claims that are pending before, or have been decided
by, the agency or the Commission. Specifically, the agency stated that
these issues were raised in complainant's prior EEO complaint (Agency
No. 98-3192).
The agency dismissed issues (1), (2), (3), (4), (5), (6), (7), (8), and
(9) on the grounds of untimely EEO Counselor contact. Specifically,
the agency stated that the alleged discriminatory matters in issues
(1) through (9) should have triggered complainant's awareness of
discrimination at the time they occurred. The agency considered the
continuing violation theory but stated that the incidents in issues (1)
through (9) were sufficiently distinct to trigger the running of the
limitations period for contacting an EEO Counselor, and found complainant
did not establish a continuing violation.
The agency dismissed issues (11), (12), (13), (14), (15), (16), (17),
(18), (19), (20), (21), (22), (23), (24), (25), (26), (27), (28), and
(29) on the grounds that complainant failed to state a claim. First,
the agency found that complainant did not show that the alleged agency
actions were sufficiently pervasive so as to alter the conditions of
complainant's employment and thus, concluded that complainant did not
state a claim of hostile work environment harassment. Additionally, the
agency found that complainant did not show that he suffered a personal
harm with regard to a term or condition of his employment. In addition,
the agency claimed that issue (11) was moot because complainant is
currently on a temporary grade 12 promotion in Group 48. Also, the
agency claimed that issue (15) was moot since the review rating that
complainant complained about was subsequently raised.
Finally, the agency noted that complainant's response also contained
an allegation concerning a possible non-selection regarding vacancy
announcement NPB-99T176, GS-12, in Grand Rapids. The agency stated,
however, that this allegation was not raised in informal EEO counseling
and also stated that the issue was premature since the position was
still open. The agency dismissed this new issue on the grounds that it
failed to state a claim and on the grounds that it had not been brought
to the attention of an EEO Counselor.
On appeal, complainant notes that he has other cases pending before the
agency, which he believes should be consolidated with the present case
for further processing.
In response to complainant's appeal, the agency acknowledged that it
may have erred in finding that issue (1) in the present complaint was
previously raised by complainant. The agency stated that although
issue (1) was not mentioned in the previous complaint, it was raised
in a June 25, 1998 letter from complainant in response to a request
by the agency to clarify that prior complaint. The agency noted that
although issue (1) was not specifically referenced in the FAD partially
dismissing the previous complaint, it should still be dismissed because
it was untimely and fails to constitute part of a continuing violation.
The agency reiterated its previous arguments with regard to the remaining
twenty-eight issues.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(1)) provides that the agency shall
dismiss a complaint that states the same claim that is pending before or
has been decided by the agency or Commission. With regard to issue (1),
we find that this issue was not raised in complainant's prior complaint.
This issue was not specifically identified in complainant's formal
complaint or the final agency decision. We note that issue (1) was raised
in complainant's response to the agency's request for clarification
of the issues identified in complainant's previous complaint (Agency
No. 98-3192), and in complainant's statement in support of his appeal
in the same complaint, however, the agency accepted only some of the
issues raised by complainant in these statements and advised complainant
to contact an EEO Counselor with regard to the additional allegations.
As the agency failed to identify issue (1) in the FAD or show that this
issue was raised during EEO counseling, we find that issue (1) was not
previously addressed by the agency.
With regard to issue (2), we find that this issue was raised in
complainant's prior complaint (Agency No. 98-3192). Thus, complainant
is precluded from raising issue (2) in the present matter.
With regard to issue (10), we find that complainant did not raise
this issue in a previous complaint. Issue (10) is referring to a
permanent GS-12 position moved from the Muskegon POD to the Grand
Rapids POD, announced after September 25, 1998. We find that the
last non-selection/reassignment issue regarding a GS-12 position
mentioned in complainant's previous complaint occurred in March 1998.
Therefore, complainant did not previously raise issue (10) in the previous
complaint.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
The Commission has held that the time requirements for initiating EEO
counseling could be waived as to certain allegations within a complaint
when the complainant alleged a continuing violation; that is, a series
of related discriminatory acts, one of which fell within the time period
for contacting an EEO Counselor. See McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990); Starr v. US PS, EEOC
Appeal No. 01890412 (April 6, 1989).
A determination of whether a series of discrete acts constitutes
a continuing violation depends on the interrelatedness of the past
and present acts. Berry v. Board of Supervisors, 715 F.2d 971, 981
(5th Cir. 1983), cert. denied, 479 U.S. 868 (1986). It is necessary to
determine whether the acts are interrelated by a common nexus or theme.
See Vissing v. Nuclear Regulatory Commission, EEOC Request No. 05890308
(June 13, 1989); Verkennes v. Department of Defense, EEOC Request
No. 05900700 (September 21, 1990); Maldonado v. Department of the
Interior, EEOC Request No. 05900937 (October 31, 1990). Should such
a nexus exist, appellant will have established a continuing violation
and the agency would be obligated to "overlook the untimeliness of the
complaint with respect to some of the acts" challenged by appellant.
Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).
With regard to issues (3) through (9), we find that the agency improperly
dismissed these issues on the grounds of untimely EEO Counselor contact.
Upon review of the record, we find that complainant established a
continuing violation. The incidents identified in issues (3) through
(9) occurred within a short time period, the same person was involved
in six of the seven incidents, and they were all connected as alleged
incidents of hostile work environment harassment. We note that the
incidents identified in complainant's present complaint begin in April
1998, within one month of the last incident of alleged harassment
identified in complainant's prior complaint (Agency No. 98-3192).
Furthermore, the Commission holds that evidence showing that complainant
had or should have had reasonable suspicion of discrimination more than
forty-five (45) days prior to initiating EEO Counselor contact will not
preclude acceptance of the overall claim of ongoing discrimination.
Ferguson v. Dept. of Justice, EEOC Request No. 059770792 (March 30,
1999); Meaney v. Dept. of the Treasury, EEOC Request No. 05940169
(November 30, 1994); see generally Armstrong v. Dept. of the Treasury,
EEOC Appeal No. 01982573 (June 17, 1999), req. for reconsideration denied,
EEOC Request No. 05990860 (November 5, 1999).
We note that on appeal the agency argued that issue (1) was untimely.
We find that issue (1) does not constitute part of a continuing
violation since it was too remote in time with regard to complainant's
other allegations. Since complainant did not raise issue (1) with an
EEO Counselor for approximately six years, we find that this issue was
untimely raised.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(1)) provides, in relevant part, that an
agency shall dismiss a complaint that fails to state a claim. An agency
shall accept a complaint from any aggrieved employee or applicant for
employment who believes that he or she has been discriminated against by
that agency because of race, color, religion, sex, national origin, age or
disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's
federal sector case precedent has long defined an "aggrieved employee"
as one who suffers a present harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy.
Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 22,
1994).
With regard to issue (20), we find that complainant failed to state
a claim. The Privacy Act, 5 U.S.C. � 552(g)(1), provides an exclusive
statutory framework governing the disclosure of identifiable information
contained in federal systems of records and jurisdiction rests exclusively
in the United States District Courts for matters brought under the
provisions of the Privacy Act. Bucci v. Department of Education, EEOC
Request Nos. 05890289, 05890290, 05890291 (April 12, 1989). Therefore,
the agency's decision to reject complainant's claim concerning a violation
of the Privacy Act for failure to state a claim was proper.
With regard to issues (10) through (19), and (21) through (29),
we find that complainant stated a claim of hostile work environment
harassment. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993), the Supreme court reaffirmed the holding of Meritor Savings
Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable
if it is sufficiently severe or pervasive to alter the conditions of
the complainant's employment. The Court explained that an "objectively
hostile or abusive work environment" is created when "a reasonable person
would find [it] hostile or abusive" and the complainant subjectively
perceives it as such. Harris, supra at 21-22. Thus, not all claims
of harassment are actionable. Where a complaint does not challenge
an agency action or inaction regarding a specific term, condition, or
privilege of employment, a claim of harassment is actionable only if,
allegedly, the harassment to which the complainant has been subjected
was sufficiently severe or pervasive to alter the conditions of the
complainant's employment.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997).
We find that the agency improperly looked at complainant's allegations
individually and not as an overall claim of a hostile work environment.
Thus, in order to avoid fragmentation of complainant's complaint, we find
that the specific incidents of harassment listed in his formal complaint
should be viewed as one claim of hostile work environment harassment.
Consequently, we find that issues (10) through (19), and (21) through
(29) state a claim of harassment.
Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(e)), requires the agency to dismiss
a complaint which is moot. A complaint is moot and a person is no longer
aggrieved when it can be said with assurance that: (1) interim relief
or events have completely and irrevocably eradicated the effects of the
alleged violation; and (2) there is no reasonable expectation that the
alleged violation will recur. When both conditions are satisfied, neither
party has a legal, cognizable interest in the final determination of the
underlying questions of fact and law. See County of Los Angeles v. Davis,
440 U.S. 625, 631 (1979).
With regard to the agency's argument that issues (11) and (15) are moot,
we find that there has been no proof that the alleged violations will
not recur.
Finally, we note that complainant requests that his complaints pending
before the agency be consolidated for further processing. Volume 64
Fed. Reg. 37, 644, 37, 661 (1999)(to be codified at and hereinafter
referred to as 29 C.F.R. � 1614.606) provides that the agency shall
consolidate two or more complaints of discrimination filed by the same
complainant for joint processing. Accordingly, on remand, the agency
shall notify complainant of the consolidation of his complaints pending
before the agency.
CONCLUSION
The agency's dismissal of issues (1), (2), and (20) is AFFIRMED for the
reasons set forth herein. The agency's dismissal of issues (3), (4),
(5), (6), (7), (8), (9), (10), (11), (12), (13), (14), (15), (16), (17),
(18), (19), (20), (21), (22), (23), (24), (25), (26), (27), (28), and
(29) was improper and is REVERSED and these issues are REMANDED to the
agency for further processing in accordance with the Order below.
ORDER
The agency is ORDERED to take the following actions:
Notify complainant within thirty (30) calendar days of the date this
decision becomes final that complainant's pending complaints will be
consolidated for joint processing;
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 continue processing complainant's complaints
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).
A copy of the agency's notification of consolidation and letter of
acknowledgment to complainant 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 (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T1199)
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:
March 14, 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 complainant, 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.
2On December 29, 1998, complainant filed another EEO complaint in which
he raised an incident that occurred on the day the EEO Counselor issued
the Notice of Right to File. Initially the second complaint was issued
a separate agency number; however, this agency number was rescinded and
the additional incident was included as part of the present complaint.