05980488
11-08-1999
Norma Townsell, Appellant, v. Richard Danzig, Secretary, Department of the Navy, Agency.
Norma Townsell v. Department of the Navy
05980488
November 8, 1999
Norma Townsell, )
Appellant, )
)
v. ) Request No. 05980488
) Appeal No. 01973585
) Agency No. 97-00620-002
Richard Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
GRANTING OF REQUEST FOR RECONSIDERATION
On February 3, 1998, Norma Townsell (hereinafter referred to as appellant)
initiated a request to the Equal Employment Opportunity Commission (EEOC)
to reconsider the decision in Townsell v. Department of the Navy, EEOC
Appeal No. 01973585 (January 12, 1998). EEOC Regulations provide that
the Commissioners may, in their discretion, reconsider any previous
Commission decision. 29 C.F.R. �1614.407(a). The party requesting
reconsideration must submit written argument or evidence which tends to
establish one or more of the following three criteria: new and material
evidence is available that was not readily available when the previous
decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision
involved an erroneous interpretation of law, regulation or material fact,
or misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the previous decision is of such exceptional nature as to have
substantial precedential implications, 29 C.F.R. �1614.407(c)(3).
Appellant's request is granted.
The issue in this case is whether the agency properly dismissed two
allegations in appellant's EEO complaint for failure to file the formal
complaint in a timely manner.
On November 16, 1996, appellant filed a formal EEO complaint (C-1)
(not at issue herein) which discussed numerous instances of alleged
mistreatment, including the following allegations (hereinafter referred
to as the Issues): (1) on September 30, 1996, appellant's supervisor told
her that she (appellant) was incompetent and on drugs, that her coworkers
were outstanding, and that appellant's friend was just like appellant;
and, (2) on September 30, 1996, the agency denied appellant's request
to be reassigned to the day shift.
By letter dated December 11, 1996, the agency asked appellant to clarify
the allegations in C-1 as the agency could not determine which events
discussed in the formal complaint were background and supporting
information, and which were actual allegations of discrimination.
By letter dated December 19, 1996, appellant responded to the December 11,
1996 clarification request but did not identify the Issues as allegations
to be included in C-1.
On January 13, 1997, the EEO Counselor in C-1 met with appellant
to further clarify the allegations in C-1. At this meeting, the EEO
Counselor prepared a memo (the Memo) further clarifying the allegations
to be included in C-1; appellant reviewed the Memo and signed it without
making any changes. The Memo did not include the Issues.
On January 14, 1997, appellant filed a formal EEO complaint (C-2), at
issue herein, which included the Issues. On March 4, 1997, the agency
issued a FAD for C-2 which dismissed the Issues for untimely EEO contact,
or in the alternative, the failure to timely file a formal complaint on
the Issues. The agency reasoned that appellant should have raised the
Issues in C-1 which would have rendered them timely.
The previous decision found that the agency properly dismissed the
Issues for failure to timely file them in the November 16, 1996 formal
complaint but did not reach the question of whether the Issues could also
be dismissed for untimely EEO Counselor contact. The previous decision
emphasized that appellant was given two chances to clarify the allegations
in C-1; neither time identified the Issues; and instead filed the Issues
as part of C-2. In her request for reconsideration, appellant reiterates
her contention that the EEO Counselor for C-1 led her to believe that the
Issues should be formally raised in C-2 and not in C-1. Appellant also
reiterates that she initially included the Issues in C-1 and asks the
Commission to "amend back" the Issues to become part of C-1. The agency
reiterates its argument that because appellant was given two chances to
include the Issues in C-1 she should not be allowed to formally raise
them in an untimely manner in C-2. The previous decision includes an
affidavit from the EEO Counselor in C-1 stating that she never misled
appellant and that appellant never mentioned the Issues at the January
14, 1997 meeting.
EEOC Regulation 29 C.F.R. �1614.106(b) provides that a formal EEO
complaint must be filed within fifteen (15) days from the date
the complainant receives a receipt a copy of the notice required by
�1614.105(d)(e) or (f). We find that the agency improperly dismissed
the allegations relating to the two incidents occurring on September
30, 1996.
While appellant did not identify the Issues in either her December 19,
1996 letter of clarification or in the Memo she signed on January 13,
1997, she specifically mentioned them in her formal EEO complaint of
November 16, 1996. According to appellant she later filed them again in
C-2 because she was under the impression that they should be included
in that complaint. The agency denies that it gave appellant such an
impression. Given the fact that appellant did initially file the Issues as
part of C-1 and in a timely manner and given the uncertain circumstances
surrounding her decision to file them again as part of C-2, we find
that the agency's dismissal of the Issues was improper. In accordance
with appellant's wishes, the Issues should instead be included as part
of C-1 if C-1 is still a viable complaint; if C-1 is no longer viable,
the Issues should be processed as part of C-2 or on their own.
Therefore, after a review of appellant's request for reconsideration,
the previous decision and the entire record, the Commission finds that
appellant's request does not meet the criteria of 29 C.F.R. � 1614.407(c),
and it is the decision of the Commission to GRANT appellant's request.
The decision of the Commission in Appeal No. 01973585 is REVERSED and
the complaint is REMANDED for further processing in accordance with the
ORDER below. There is no further right of administrative appeal from
the decision of the Commission on this request for reconsideration.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgement to appellant 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 (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.
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:
November 8, 1999
______________ ______________________
DATE Carlton Hadden
Acting Director
Office of Federal Operations