Linda K. Young, Appellant,v.Lawrence H. Summers, Secretary, Department of the Treasury, (Customs Service), Agency.

Equal Employment Opportunity CommissionOct 25, 1999
01984999 (E.E.O.C. Oct. 25, 1999)

01984999

10-25-1999

Linda K. Young, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, (Customs Service), Agency.


Linda K. Young v. Department of the Treasury

01984999

October 25, 1999

Linda K. Young, )

Appellant, )

)

v. ) Appeal No. 01984999

) Agency No. 98-2121

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

(Customs Service), )

Agency. )

______________________________)

DECISION

For the reasons set forth below, the Commission vacates the agency's

May 8, 1998 final decision (FAD), which dismissed eight out of nine

allegations in appellant's February 19, 1998 formal EEO complaint for

untimely EEO Counselor contact. We are not persuaded by the agency's

response to appellant's appeal<1> to reach a contrary conclusion.

The Commission finds the agency has not properly defined appellant's

complaint. See Smith v. U.S. Postal Service, EEOC Request No. 05921017

(April 15, 1993). Therefore, we are unable to make an appropriate

timeliness determination.

The Commission finds that appellant's complaint contained numerous

allegations. It is not clear from either the record or from appellant's

appeal which issues she intended to be "live" allegations and which

issues she intended to be background allegations in support of "live"

allegations. For example, the Commission notes a letter dated March 9,

1998, from appellant in response to the agency's request for information

pertaining to the timeliness of her allegations. Therein, appellant

stated in pertinent part:

[T]he breaking down of my complaint into smaller components debases the

effect of the overall, continuing problem of management's discriminatory

behavior towards me. Some of the issues addressed as allegations

(specifically numbers 1, 2, and 3) are not necessarily included

for redress, but are included to present a historical background

of...discrimination....The incidents also serve as evidence of the

pattern and practice of...discrimination and...continued attempts too

remove me from the Canine section/position, a practice that continues

to this date.

Moreover, on appeal, appellant argues that one of the alleged incidents

"originally complained" of "was resolved." In addition, appellant appears

to argue that she was not aware of her EEO rights. Given the lack of

clarity in the record relating to the matters raised in appellant's

formal complaint, the Commission is incapable of ascertaining whether

the agency properly dismissed some of the matters raised in her formal

complaint for failure to timely contact an EEO Counselor.

Accordingly, the FAD's partial dismissal of appellant's complaint

is hereby VACATED. Her complaint is hereby REMANDED to the agency

for further processing consistent with this decision and applicable

regulations. The parties are advised that this decision is not a decision

on the merits of appellant's complaint. The agency is hereby directed

to comply with the Commission's ORDER set forth below.

ORDER

The agency is ORDERED to ensure the completion of the following actions:

1. The agency shall refer appellant to EEO counseling for a clarification

of the allegations in her February 19, 1998 formal EEO complaint.

Appellant may not add new allegations and shall not be required to refile

her complaint. All abbreviations and agency terms of art shall be fully

and clearly identified and explained.

2. The EEO Counselor shall issue a new report containing the specifics

of appellant's bases of alleged discrimination and issues with regard

to dates of complained of events; individuals responsible for the

enumerated acts of alleged discrimination; and a distinction drawn by

appellant between allegations intended to be "live" allegations, and

allegations offered as background evidence in support of live allegations.

Appellant shall also indicate, in appropriate detail, whether and which

allegations concern the alleged failure of the agency to provide her

with reasonable accommodation for her purported disability; and the

nature of the reasonable accommodation, as well as the nature of the

purported disability. Appellant shall also advise the agency if she is

represented by an attorney or non-attorney.

3. In addition, the Counselor shall obtain information as to whether and

when appellant knew or should have known of her EEO rights at the time

the incidents arose as complained of by appellant. Such information shall

include, but not be limited to, whom appellant was to contact to initiate

EEO counseling; how she could initiate such contact; and whether appellant

knew or should have known of the applicable time limitation of 45 days

for initiating EEO counseling, pursuant to 29 C.F.R. �1614.105(a)(1), and

what, if any, subjects were or were not appropriate for EEO counseling.

4. If agreement is reached on defining appellant's allegations, and the

agency accepts the defined allegations for investigation, the agency shall

issue to appellant a letter of acceptance. If agreement cannot be reached

on defining appellant's complaint or the agency dismisses appellant's

complaint, the agency shall issue a new final decision to appellant,

with appeal rights to the Commission, stating the specific legal grounds

and facts relied upon. The agency shall not dismiss allegations de facto

by omitting them from the final decision.

5. The supplemental investigation and issuance of the letter of acceptance

or final decision as set forth in item (4) above shall be completed

within ninety (90) calendar days of the date the Commission's decision

becomes final. A copy of the final decision shall be submitted to the

Compliance Officer, as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (R0993)

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. It is the position of the Commission that 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. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive this decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. 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 (Z1092)

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:

10/25/1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1The Commission has found appellant's appeal, filed on June 8, 1998,

to be timely. Although her appeal had to be filed by June 7, 1998,

that day fell on a Sunday. Therefore, the applicable time limitation was

extended to June 8, 1998, the next business day. See 29 C.F.R. ��1614.402

and .604, in pertinent parts.