01990955
11-04-1999
Marc Barredo, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Marc Barredo v. Department of the Navy
01990955
November 4, 1999
Marc Barredo, )
Appellant, )
)
v. ) Appeal No. 01990955
) Agency No. 97-62383-004
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
For the reasons set forth below, the Commission sets aside the September
30, 1998 final agency decision (FAD), partially dismissing appellant's
March 24, 1997 formal EEO complaint for the stated reason that he had
previously filed a grievance on the same issue, i.e., a January 13,
1997 letter of reprimand.<1> See 29 C.F.R. ��1614.107(d), and .301(a).
We find the agency has not met its burden of providing sufficient evidence
in support of the FAD. See Henry v. U.S. Postal Service, EEOC Request
No. 05940897 (May 18, 1995). We find it unclear, for example, whether
the collective bargaining agreement (CBA) in the present case permitted
employees such as appellant, who received reprimands, to raise allegations
of discrimination in the negotiated grievance process. In addition, we
find that, although the record contains a purported Step 2 decision, dated
February 20, 1997, the record contains no evidence of a Step 1 decision
or any response from appellant to that Step 1 decision. Therefore,
the Commission is unable to determine whether appellant's January
23, 1997 "APPEAL OF LETTER OF REPRIMAND," which pleading referenced,
in part, the CBA, is a grievance filed under a negotiated grievance
process that permits allegations of discrimination to be raised; or is
an administrative "appeal" to, or administrative "review" by appellant's
agency.
Having reviewed the entire record, the Commission hereby VACATES the
FAD's partial dismissal of appellant's appeal. Appellant's 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 shall comply with the Commission's ORDER set forth below.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
1. The agency shall obtain statements, under oath or affirmation, from
a representative of the agency, as well as from a representative of
appellant's union, indicating that both parties interpret the CBA at issue
as permitting employees such as appellant to raise claims of employment
discrimination in the negotiated grievance process. The statements
shall include specific references to relevant portions of the CBA,
as well as specific references to other documents if relevant.
2. The agency shall obtain true copies of the agency's Step 1 decision
and appellant's response to that Step 1 decision, or explain the absence
of both documents.
3. Thereafter, the agency shall either issue a letter of acceptance
to appellant accepting his dismissed allegation for investigation, or
issue a new final decision with appeal rights to the Commission again
dismissing the allegation at issue. The new FAD shall set forth the legal
grounds and factual evidence on which the new dismissal is predicated,
as well as reference specified documents relied upon, if any.
4. The supplemental investigation and issuance of the letter of
acceptance or new FAD, referenced in item (3) above, must be completed
within sixty (60) calendar days of the date this decision becomes final.
A copy of the letter of acceptance or final decision, with all relevant
documents, must 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:
11/04/1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The Commission notes that appellant alleged discrimination based on race
(Hispanic). The Commission recognizes "Hispanic" as indicating national
origin instead of race. See Quesada v. United States Postal Service,
EEOC Appeal No. 01940399 (August 19, 1994), at footnote 1 ("Mexican"),
request to reconsider denied, Quesada v. United States Postal Service,
EEOC Request No. 05950003 (June 29, 1995). The Commission further
notes that appellant requested punitive damages in the present matter,
as well as compensatory damages. However, "punitive damages are not
available to Federal employees." See Jones v. Department of Health
and Human Services, EEOC Request No. 05940377 (January 23, 1995), citing
Graham v. U.S. Postal Service, EEOC Request No. 05940132 (May 19, 1994).