01996404
03-07-2000
Joy A. Murphy, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Office of Dependent Education Activity), Agency.
Joy A. Murphy, )
Complainant, )
)
v. ) Appeal Nos. 01996404
) 01A00861
) Agency No. EU-FY98-15
William S. Cohen, )
Secretary, )
Department of Defense, )
(Office of Dependent Education Activity), )
Agency. )
____________________________________)
DECISION
Complainant has two appeals from two separate agency decisions dated May
13, 1999 and September 17, 1999.<1> The May 13, 1999 decision dismissed
a portion of the complaint for stating the same claim as raised by
complainant in EU-FY97-23. The September 17, 1999 decision dismissed
the remainder of the complaint on the grounds that the six remaining
claims were raised in a grievance. The Commission shall consolidate the
two appeals. Although direct appeals of decisions partially dismissing
a complaint are no longer permissible under the regulations revised
on November 9, 1999, we shall consider the instant appeal because the
agency has now dismissed entire complaint.
In the May 13, 1999 decision the agency dismissed the claims identified
in the November 9, 1998 acceptance letter as claims (a), (d), (e), (f),
(g), and (j), on the grounds that these claims stated the same claims
as raised by complainant in EU-FY97-23. After reviewing the agency's
decision dated July 29, 1999 for EU-FY97-23, the Commission finds that
claims (a) (not able to obtain informal EEO complaint services) and (g)
(not allowed to teach 8th grade Pre-Algebra/Algebra class, August 11 -
19, 1997), were properly dismissed for stating the same claim that has
been decided by the agency. 64 Fed. Reg. 37,644, 37656 (to be codified
and hereinafter cited as 29 C.F.R. � 1614.107(a)(1)). The Commission
finds that although the dates of incidents might be different in claim (a)
and the claim raised in EU-FY97-23, the claim regarding the inability to
received EEO complaint services is the same. The Commission finds that
claims (d) (not selected for training), (e) (not paid for attending
training), (f) (not listed as alternate for training), and (j) (not
selected as SIP chairperson), were improperly dismissed for stating the
same claim as raised in EU-FY97-23. The agency has failed to show how
these claims are the same as those raised in EU-FY97-23.
In the September 17, 1999 decision the agency dismissed claims 1 - 6 on
the grounds that these claims were raised in a grievance. The regulation
set forth at 64 Fed. Reg. 37,644, 37656 (to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(4)), provides that a complaint shall
be dismissed where the complainant raised the matter in a negotiated
grievance procedure that permits claims of discrimination. Although the
record shows that complainant filed a grievance, the agency has failed
to provide a copy of the portion of the collective bargaining agreement
which specifically states that claims of employment discrimination (e.g.,
such as claims in violation of Title VII) may be raised in the agency's
negotiated grievance procedure. Therefore, we find that the agency has
failed to show that claims 1 - 6 were properly dismissed pursuant to �
1614.107(a)(4).
The agency's decision dismissing claims (a) and (g) is AFFIRMED.
The agency's decision dismissing claims (d), (e), (f), (j), and 1 -
6, is REVERSED and we REMAND these claims to the agency for further
processing in accordance with this decision and applicable regulations.
ORDER (E1199)
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 an
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 (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 7, 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
1On 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.