01A04933_r
05-07-2001
Linda K. Prock, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.
Linda K. Prock v. Department of the Navy
01A04933
May 7, 2001
.
Linda K. Prock,
Complainant,
v.
Robert B. Pirie, Jr.,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A04933
Agency No. DON-00-62412-001
DECISION
Complainant filed an appeal with this Commission from an agency decision
pertaining to her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
Believing that she was the victim of discrimination based on sex,
disability and in reprisal for prior protected activity, complainant
left a telephone message with the agency EEO office on or about
February 29, 2000. The record shows that on that same day, the EEO
Counselor telephoned complainant, who referred the EEO Counselor to
complainant's attorney. The record reflects that on four different
occasions over a two-week period, the agency EEO Counselor requested
that complainant's attorney call the EEO office. On March 16, 2000, the
EEO Counselor finally contacted complainant's attorney and was informed
that complainant was too upset to speak to the EEO Counselor. Further,
during that same phone conversation on March 16, 2000, complainant's
attorney indicated that complainant may be interested in mediation.
Furthermore, the EEO Counselor informed complainant's attorney that
she would send complainant a certified letter with the necessary forms
and advised her attorney that she needed to schedule a phone interview
with complainant and her attorney to get the informal process started.
The agency mailed the Alternative Dispute Resolution (ADR) letter to
complainant on March 20, 2000. Further, the letter requested that the
complainant reply by April 4, 2000. Complainant never responded to that
letter and neither complainant nor her attorney attempted to contact
the EEO Counselor after the phone conversation of March 16, 2000.
On April 27, 2000, the agency issued a notice of final interview.
While indicating that the notice constituted �final counseling,� the
agency indicated that matters were presented by complainant's attorney,
but that complainant did not respond or provide information previously
requested to start the EEO complaint process.
On May 11, 2000, complainant filed the formal complaint that is the
subject of the instant appeal.
On May 26, 2000, the agency issued a final decision. Therein, the agency
determined that complainant's complaint was comprised of the following
two claims:
(1) on February 29, 2000, several named agency employees made up a false
statement against complainant and circulated it; and
(2) on May 12, 2000, complainant was terminated from the agency.
The agency dismissed complainant's complaint for failure to raise the
claims before an EEO Counselor pursuant to 29 C.F.R. � 1614.107(a)(2).
Based on a review of the record, we find the agency properly dismissed
complainant's complaint on the grounds that complainant did not raise
the claims before an EEO Counselor and that they are not like or related
to matters for which she underwent EEO counseling. The Commission
determines that complainant's February 29, 2000 telephone contact was not
made with intent to pursue the EEO complaint process. During that phone
conversation on February 29, 2000, complainant specifically instructed
the agency to contact her attorney regarding her formal complaint.
At complainant's request, the agency made good faith efforts to contact
complainant's counsel to conduct counseling on complainant's complaint,
but to no avail. The Commission notes that the purpose of EEO counseling
is to allow both the complainant and the agency to informally resolve
the complaint before going to the next higher formal complaint stage.
29 C.F.R. � 1614.105 (a). Accordingly, the agency's decision dismissing
complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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. 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 7, 2001
__________________
Date