01981299
04-13-1999
Robin M. Montoya, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Robin M. Montoya v. Department of the Army
01981299
April 13, 1999
Robin M. Montoya, )
Appellant, )
)
v. ) Appeal No. 01981299
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
___________________________________)
DECISION
Appellant filed the instant appeal from the agency's decision dated
November 5, 1997 dismissing appellant's complaint as moot. Appellant
alleged that she was discriminated against when false, derogatory
statements were made about appellant as input into appellant's performance
appraisal for the period of November 1, 1996 through April 30, 1997.
The agency found that appellant's complaint was moot because appellant
received an "Exceptional-1" rating. The agency also found that appellant
had been reassigned.
On appeal the agency explains that the comments at issue are "peer
evaluation comments" that are not part of any official record and are
not included in the annual performance rating. The agency found that
because appellant received the highest possible rating,
the comments had no impact on appellant's employment.
The Commission finds that appellant is not challenging her ultimate
rating. Appellant is challenging the peer evaluation comments that
were gathered in the process of determining the rating. Although the
agency stated that it dismissed the complaint as moot, the agency also
effectively found that appellant was not aggrieved. Therefore, it is
appropriate to examine whether the instant complaint states a claim.
The record contains a document entitled "ACALA Peer/Customer Input
Analysis Base System" in which negative comments are apparently made about
appellant's performance. Presumably this document comprises at least a
portion of the comments at issue. Although the agency states on appeal
that no official record of these types of documents are maintained,
the agency has not supplied any affidavit from any appropriate
official stating that no such records are maintained by the agency.
The agency's assertions on appeal are in an unsigned brief that does not
contain a signature block. Therefore, it appears that appellant may be
aggrieved, and that the issue is not moot, if the agency maintains an
official record of negative characterizations of appellant's employment
performance. The Commission shall remand the matter so that the agency
may supplement the record with an affidavit from an appropriate agency
official addressing whether the peer comments at issue in this complaint
are maintained in agency records.
The agency's decision dismissing a portion of the complaint is VACATED
and we REMAND the complaint to the agency for further processing in
accordance with this decision and applicable regulations.
ORDER
The agency shall supplement the record with an affidavit from an
appropriate agency official addressing whether the peer comments at issue
in this complaint are maintained in agency records. Within 30 days
of the date this decision becomes final the agency shall either issue
a new decision dismissing the complaint or issue a letter to appellant
accepting the complaint for investigation. A copy of the new decision
or letter accepting the complaint must be sent to the Compliance Officer
referenced herein.
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:
April 13, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations