01985209
05-30-2000
Laura L. Thomas, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Laura L. Thomas v. Department of the Navy
01985209
May 30, 2000
Laura L. Thomas, )
Complainant, )
)
v. )
) Appeal No. 01985209
Richard J. Danzig, ) Agency No. 95-65923-016
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
On June 17, 1998, complainant timely appealed the agency's June 12, 1998
final decision, which dismissed her complaint on the grounds that she
failed to accept the agency's certified offer of full relief. The appeal
is accepted by the Commission in accordance with 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).<1>
On March 30, 1995, complainant filed an EEO complaint that raised the
following issues.
(1). Whether, on January 30, 1995, complainant was discriminated against
because of her sex (female) when her first-line supervisor, A-1, allegedly
offered to credit her with eight hours of overtime that she did not work
in exchange for giving him a nude picture of herself.
(2). Whether complainant was discriminated against because of her
sex (female) when she was subjected to a hostile work environment for
approximately two years as a result of A-1 allegedly touching her and
requesting sexually explicit material including videos and pictures.
Additionally, complainant maintained that management officials failed
to expeditiously take action against A-1.
On May 29, 1998, the agency served, by facsimile, complainant's attorney
with an offer of full relief. The offer contained a written certification
indicating that the offer constituted full relief and that the failure to
accept said offer within thirty days of its receipt, or its refusal, could
result in dismissal of her complaint. The facsimile was resubmitted on
June 1, 1998. In addition, the original offer was sent by certified mail,
on June 1, 1998, and received by complainant's attorney on June 2, 1998.
On June 2, 1998, complainant received notice of her right to request
a hearing before an Administrative Judge. Complainant, that same
day, requested the hearing. On June 12, 1998, the agency dismissed
complainant's complaint based on her refusal to accept its offer.
Although complainant had thirty days in which to accept the offer, the
agency treated her request for a hearing as a declination of its offer.
On June 15, 1998, the agency received a facsimile from complainant's
attorney indicating that she still had more time within which to accept or
reject the agency's offer. According to the attorney, the complainant was
"seriously considering the agency's offer at this juncture." On June 17,
1998, complainant filed an appeal with the Commission.
As noted, on 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. Under these revisions, the Commission deleted the
dismissal basis of failure to accept a certified offer of full relief from
the regulations. See 64 Federal Register 37,644, 37,645 (1999). In other
words, agencies may no longer dismiss administrative EEO complaints due
to a complainant's failure to accept a certified offer of full relief.
Any dismissal on the grounds of failure to accept a certified offer of
full relief is now improper under the revised regulations. Accordingly,
the agency's decision in the present case must be VACATED, and the
complaint REMANDED for further processing in compliance with the revised
EEOC Regulations.<2>
ORDER
Pursuant to 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified as 29
C.F.R. � 1614.108(f) and (g)), the agency, within 15 days of receiving
this decision, shall issue a notice informing the complainant that
she shall have the right to request a hearing and decision from an
administrative judge or may request an immediate final decision from the
agency, pursuant to 64 Fed. Reg. 37,644, 37,657 (1999) (to be codified as
29 C.F.R. � 1614.110(b)). Complainant shall be provided 30 calendar days
to make a decision and the address of the appropriate EEOC district or
field office having jurisdiction over the geographic area in which the
complaint arose in order to submit, should she so decide, her request
for a hearing. A copy of the agency's notice 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 (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:
__05-30-00_______ __________________________________
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
2Moreover, we find that even if offers of full relief were still
available, the agency's dismissal of the complaint was procedurally
deficient because although complainant had until June 28, 1995, to decide
if she was going to accept the offer of full relief, the agency dismissed
her complaint on June 12, 1995. We are not persuaded by the agency's
assertion that complainant, by requesting an administrative hearing on
June 2, 1995, declined its offer.