Norma Paredes, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionFeb 24, 2000
01985318 (E.E.O.C. Feb. 24, 2000)

01985318

02-24-2000

Norma Paredes, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Norma Paredes, )

Complainant, )

)

v. ) Appeal No. 01985318

Richard J. Danzig, ) Agency No. DON 98-62383-002

Secretary, )

Department of the Navy, )

Agency. )

____________________________________)

DECISION

The Commission notes that the present case contains two appeals from

two separate final agency decisions, one dated March 16, 1998, and the

second dated June 24, 1998. This decision will address both appeals

filed by complainant. 64 Fed. Reg. 37,644, 37,661 (to be codified and

hereinafter referred to as 29 C.F.R. � 1614.606).

In her complaint, complainant alleged that she was subjected to

discrimination on the bases of race (Asian/Pacific Islander), national

origin (Filipino), and age (DOB 6/13/44) when:

On September 23, 1997, complainant's former supervisor (S1), and her

supervisor's financial manager (F1), the accounting officer (A1),

complainant's immediate supervisor (S2), the EEO Specialist (EEO1),

and complainant's former co-worker (EE1), did not promote complainant

and did not offer complainant employment under the Military Sealift

Command, Pacific's (MSCPAC's) re-invention;

On September 23, 1997, (S2) did not include complainant in the

realignment process;

On September 23, 1997, (F1) and (A1) did not approve of an offer

for a position that complainant could have received under the new

realignment;

On September 23, 1997, those listed in issue (1) knew complainant was

a GS-4 doing GS-11 work and complainant was not given a promotion for

performing at that work level;

On September 23, 1997, (EEO1) gave complainant unsatisfactory

assistance;

On September 23, 1997, those listed in issue (1) did not give complainant

the opportunity to have a desk audit;

On September 23, 1997, those listed in issue (1) did not respond to

complainant's request to have her position description changed; and

In May 1997, complainant received a lower performance appraisal for

FY97 then she received for FY96from (S1).

In the first FAD (FAD 1) dated March 16, 1998, the agency dismissed

issues (1) through (7) of complainant's complaint while accepting issue

(8). On June 22, 1998, complainant filed an appeal to the Commission

challenging the agency's partial acceptance/dismissal. The agency issued

a subsequent FAD (FAD 2) dated June 24, 1998, in which it dismissed issue

(8) of complainant's complaint on the grounds that complainant failed

to accept an offer of full relief. Complainant filed her appeal on the

second FAD on July 23, 1998.

FAD 1

A copy of the certified mail return receipt card reveals that the first

FAD was received at complainant's address of record on March 28, 1998.

A review of the first FAD reveals that the agency properly advised

complainant that she had thirty (30) calendar days after receipt of its

final decision to file her appeal with the Commission. Therefore, in

order to be considered timely, complainant had to file her appeal no later

than April 27, 1998. Complainant has not offered adequate justification

for an extension of the applicable time limit for filing her appeal.

Accordingly, complainant's June 22, 1998 appeal is hereby DISMISSED.

See 64 Fed. Reg. 37,644, 37,659, 37, 661 (1999)(to be codified and

hereinafter referred to as 29 C.F.R. �� 1614.402 and 1614.604).

FAD 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. Under these revisions, the Commission deleted the dismissal

basis of failure to accept a certified offer of full relief from the

regulations. See 64 Fed. Reg. 37,644, 37,645 (1999). In other words,

agencies may no longer dismiss administrative EEO complaints due to

a complainant's failure to accept a certified offer of full relief.

Any dismissal on the grounds of failure to accept a certified offer of

full relief is now improper under the revised regulations. Accordingly,

the agency's June 24, 1998 decision must be VACATED, and issue (8) must

be REMANDED for further processing in compliance with the revised EEOC

Regulations.

ORDER (E1199)

The agency is ORDERED to process the remanded claim 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 claim 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 an

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 (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T1199)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed AND that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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. If you file

a request to reconsider and also file a civil action, 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:

February 24, 2000

Date Carlton M. Hadden, Acting 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 of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant