01a04876
08-17-2000
Lynn Burek, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Lynn Burek v. Department of Commerce
01A04876
August 17, 2000
.
Lynn Burek,
Complainant,
v.
William M. Daley,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A04876
Agency No. 00-63-00567D
DECISION
The instant matter is being processed pursuant to a Memorandum of
Understanding (MOU) entered into by the agency, the Bureau of the Census,
and the United States Equal Employment Opportunity Commission.<1> The
MOU was entered into in order to process complaints arising from the
2000 Decennial Census more effectively and efficiently.
Pursuant to the MOU, individuals file their complaints directly with
the Commission. The Commission, through its Washington, D.C. Field
Office, then conducts an early assessment of complaints and neutral
evaluation of cases. The Washington, D.C. Field Office of the Commission
establishes a record of the complaint by obtaining an affidavit from the
complainant and by contacting an agency official to obtain the necessary
information on the complaint. Based on the record established by the
Washington, D.C. Field Office, the Washington, D.C. Field Office will:
(1) notify the agency that the individual has elected not to file a
formal complaint; (2) issue a decision dismissing the complaint and
notify the complainant or his or her right to appeal the decision to
the Office of Federal Operations; (3) conduct settlement negotiations;
or (4) notify the complainant that the complaint has been accepted and
forward the complaint to the agency for further investigation.
In the instant matter the Washington, D.C. Field Office of the Commission
issued a decision dated June 13, 2000, dismissing the instant complaint
�based on 29 C.F.R. � 1614.107.� In the complaint complainant alleged
that she was discriminated against on the bases of age, disability, and
in reprisal, when she was demoted and terminated. The prior decision
found that: (1) complainant did not claim that she requested a reasonable
accommodation or assert that she was discriminated against as a result
of her disability; (2) complainant did not indicate that she engaged in
prior protected activity;(3) the agency denied discriminating against
complainant; and (4) complainant voluntarily requested to moved into a
non-supervisory role and requested to be terminated.
Complaints shall be dismissed for failing to state a claim pursuant to
the regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999) (to be
codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.107(a)(1)). The Commission presumes that the prior decision
intended to dismiss the complaint for failing to state a claim.
The Commission finds that complainant did claim that she made the
agency aware of her disability (SI joint/neuroma; back problems) and
that the question of whether the agency was aware or should have been
aware of complainant's possible need for a reasonable accommodation is
a question more appropriately considered on the merits, rather than
a procedural dismissal. The Commission finds that complainant has
claimed that she initially contacted an EEO Counselor and then was
later terminated. Therefore, we find that complainant did engage in
protected activity as set forth in 29 C.F.R. � 1614.101(b). Finally, the
Commission finds that the question of the voluntariness of complainant's
demotion and termination are questions more appropriately considered
on the merits, rather than a procedural dismissal. The Commission
finds that complainant's claim alleges a harm to a term, condition,
and/or privilege of complainant's employment and that the complaint was
improperly dismissed.
The Washington, D.C. Field Office's decision dismissing the complaint
is REVERSED and we REMAND the complaint to the Washington, D.C. Field
Office for further processing in accordance with this decision, the
Memorandum of Understanding, and applicable regulations.
ORDER
The Washington, D.C. Field Office shall, pursuant to the Memorandum
of Understanding referenced in this decision, conduct settlement
negotiations on the instant complaint or notify complainant that the
complaint has been accepted and forward the complaint to the agency for
further investigation.
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:
______________________________
Carlton M. Hadden, Acting Director
Office of Federal Operations
August 17, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this 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.