Maria A. Amburgey, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionNov 2, 2000
01993734 (E.E.O.C. Nov. 2, 2000)

01993734

11-02-2000

Maria A. Amburgey, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Maria A. Amburgey, )

Complainant, )

)

v. ) Appeal No. 01993734

) Agency No. 97-1313

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Agency. )

____________________________________)

DECISION

INTRODUCTION

Complainant filed a timely<1> appeal with this Commission from a final

agency decision (FAD) dated February 25, 1999, dismissing her complaint

of unlawful employment discrimination in violation of Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<2>

BACKGROUND

Complainant filed a formal complaint on June 23, 1997, alleging

discrimination on the bases of race (Hispanic), national origin

(Mexican-Panamanian), and retaliation (prior EEO activity) when: (1)

commencing on April 17, 1997, and continuously, she received excessive

requests for status reports on all duties performed; (2) commencing on

April 30, 1997, and continuously, her daily activities were monitored;

(3) her request for a credit hour for May 30, 1997, was denied; and (4)

on June 3, 1997, her request for reassignment was denied. Complainant

resigned from employment with the agency, effective August 30, 1997.

In a final agency decision dated September 30, 1997, the agency dismissed

complainant's claims, stating that complainant's subsequent resignation

from employment with the agency rendered the matters moot. On November 3,

1997, complainant appealed the dismissal to this Commission, asserting

that she was forced to resign due to the alleged discrimination.

In Maria A. Amburgey v. Robert E. Rubin, Secretary, Department of the

Treasury, EEOC Appeal No. 01980664 (September 2, 1998), the Commission

found that the agency improperly dismissed complainant's complaint.

It ordered the agency to provide complainant the opportunity to obtain

EEO counseling for the claim regarding constructive discharge and to

amend her complaint to include the same. In a letter dated November 25,

1998, the agency told complainant to contact the agency's Headquarters

EEO Office to obtain the name and telephone number of an EEO counselor.

The agency instructed complainant to contact the EEO Office within 15

calendar days of her receipt of their letter. The record shows that

complainant received that letter on November 27, 1998. Complainant's

phone records, as contained in the record, reveal that on December 9,

1998 complainant did call the agency's Headquarters EEO Office at (202)

622-8372. Over a period of four months, complainant tried to contact

the agency, concerning her complaint, but did not succeed until March

of 1999.

The agency sent complainant a letter on February 25, 1999 dismissing the

portion of complainant's complaint regarding the constructive discharge

issue for failure to cooperate. The decision reasoned that complainant

had not contacted an EEO Counselor regarding this matter. The agency then

issued another letter dated July 8, 1999, rescinding the February 25, 1999

dismissal letter and administratively closing the constructive discharge

issue because there was �no evidence that an official formal complaint

of discrimination was filed on the matter.� Thereafter, in a letter to

the Commission dated July 16, 1999, the agency explained that there was a

fifth working condition issue, inextricably linked to the first four, that

it had previously inadvertently omitted. The agency did not explain what

that issue involved, but did state that it had amended its September 30,

1997 dismissal letter to include the fifth issue. The agency also asked

the Commission to issue a decision on all five working condition issues.

Accordingly, the issues before the Commission are the five working

condition issues and the constructive discharge issue.

ANALYSIS AND FINDINGS

The record clearly demonstrates that complainant timely complied with

the agency's request that she contact their Headquarters EEO Office.

There is no indication in the record that complainant failed to cooperate.

We, therefore, disagree with the agency's dismissal of the constructive

discharge issue in their February 25, 1999 letter. There is no need for

us to reverse that letter because the agency already did so in its July

8, 1999 letter. We do, however, find that the July 8, 1999 letter was

incorrect when it administratively closed the constructive discharge issue

for lack of an official formal complaint of discrimination on the matter.

Complainant did not file a formal complaint on the constructive discharge

issue because she was not provided with a notice of the right to file

a formal complaint. Complainant tried, to no avail, to contact an

EEO Counselor on the matter so that she could file a formal complaint.

We are, therefore, remanding the constructive discharge issue back to

the agency for further processing. Further, because the constructive

discharge issue is an actionable claim, the five working condition issues

are not moot.

CONCLUSION

We therefore REVERSE the agency's administrative closure of July 8,

1999, and find that it along with the five work related issues must be

processed in accordance with the ORDER below.

ORDER (E0400)

The agency is ORDERED to process the remanded claims (i.e. the five

working condition issues and the constructive discharge issue) together,

in accordance with 64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified

and hereinafter referred to as 29 C.F.R. � 1614.108). The agency shall

acknowledge to the complainant that it has received the remanded claims

within thirty (30) calendar days of the date this decision becomes final.

The agency shall issue to complainant a copy of the investigative file

and also shall notify complainant of the appropriate rights within one

hundred fifty (150) calendar days of the date this decision becomes

final, unless the matter is otherwise resolved prior to that time.

If the complainant requests a final decision without a hearing, the

agency shall issue a final decision within sixty (60) days of receipt

of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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

complainant. If the agency does not comply with the Commission's order,

the complainant may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). The complainant 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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �

1614.503(g). Alternatively, the complainant 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. �� 1614.407

and 1614.408. 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 complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

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:

11-02-00

Date Carlton M. Hadden, Director

Office of Federal Operations

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 1 The agency did not supply a copy of a certified mail return

receipt with the date of receipt by complainant or any other material

capable of establishing the date complainant received the FAD. Since the

agency failed to submit evidence of the date of receipt, the Commission

presumes that complainant's appeal was filed within thirty (30) days of

receipt of the agency's final decision. See 29 C.F.R. � 1614.402(a).

2 On 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.