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