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.