01991218
09-09-1999
Mercedes Vasquez, Appellant, v. James Lee Witt, Director, Federal Emergency Management Agency, Agency.
Mercedes Vasquez v. Federal Emergency Management Agency
01991218
September 9, 1999
Mercedes Vasquez, )
Appellant, )
)
v. ) Appeal No. 01991218
) Agency No. 98-022
James Lee Witt, )
Director, )
Federal Emergency )
Management Agency, )
Agency. )
______________________________)
DECISION
For the reasons set forth below, the Commission sets aside the agency's
October 27, 1998 final decision (FAD), which partially dismissed
appellant's July 9, 1998 formal EEO complaint for untimely EEO Counselor
contact, pursuant to 29 C.F.R. �1614.107(b), in pertinent part. The
agency has offered no response to appellant's appeal<1> to persuade the
Commission to reach a contrary conclusion.
The FAD dismissed appellant's allegation that she learned, on
November 22, 1996, she had not been selected for the position of
Lead Personnel Assistant, GS-7; and that she was not given fair and
equal consideration for promotion by agency management. The FAD found
appellant's September 17, 1997 EEO Counselor contact regarding this issue
to be beyond the applicable time limit of 45 days, as prescribed by 29
C.F.R. �1614.105(a)(1). The gravamen of appellant's appeal, however,
is that she had initiated EEO counseling regarding the nonselection at
issue "right after this happened." However, appellant argues, she was,
in effect, ignored. Therefore, the Commission will direct the agency
to conduct a supplemental investigation into appellant's assertions
regarding the agency's EEO process in her case.
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 investigate appellant's claim that she had
unsuccessfully attempted to contact an EEO Counselor in a timely manner
with regard to her dismissed nonselection issue.
2. The agency shall obtain a statement from appellant, under oath or
affirmation, describing specifically the dates, events, and individuals
involved regarding her efforts to engage in timely EEO Counselor contact
pertaining to the nonselection at issue.
3. The agency shall also obtain statements, under oath or affirmation,
from any and all persons with first-hand knowledge of appellant's
assertions, sufficient for the agency to reach a reasoned determination
as to the veracity of appellant's assertions regarding the timeliness
of her EEO Counselor contact as to the nonselection at issue.
4. Thereafter, the agency shall either accept appellant's nonselection
allegation for investigation, through the issuance of a letter of
acceptance to appellant; or shall again dismiss the nonselection
allegation by issuing a new final decision with appeal rights to the
Commission, stating the specific legal grounds and facts relied upon.
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
sixty (60) calendar days of the date the Commission's decision becomes
final in this case. A copy of the final decision, with all relevant
documents including the report of the supplemental investigation, 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:
September 9, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The Commission has found appellant's appeal, filed on November 27, 1998,
to be timely in the absence of evidence as to when she received the FAD.