01a02568
04-12-2000
Sandra Weinstein, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Sandra Weinstein, )
Complainant, )
)
v. ) Appeal No. 01A02568
) Agency No. 99-63-00884D
William M. Daley, )
Secretary, )
Department of Commerce, )
Agency. )
______________________________)
DECISION
The instant matter is being processed following the implementation of
a Memorandum of Understanding (MOU) entered into by the agency, the
Bureau of the Census, and the United States Equal Employment Opportunity
Commission.<1> The MOU was entered into in order to process complaints
arising from the 2000 Decennial Census more effectively and efficiently.
Pursuant to the MOU, individuals file their complaints directly with
the Commission. The Commission, through its Washington, D.C. Field
Office, then conducts an early assessment of complaints and neutral
evaluation of cases. The Washington, D.C. Field Office of the Commission
establishes a record of the complaint by obtaining an affidavit from the
complainant and by contacting an agency official to obtain the necessary
information on the complaint. Based on the record established by the
Washington, D.C. Field Office, the Washington, D.C. Field Office will:
(1) notify the agency that the individual has elected not to file a
formal complaint; (2) issue a decision dismissing the complaint and
notify the complainant or his or her right to appeal the decision to
the Office of Federal Operations; (3) conduct settlement negotiations;
or (4) notify the complainant that the complaint has been accepted and
forward the complaint to the agency for further investigation.
The agency issued a decision dated August 23, 1999, dismissing a
portion of complainant's complaint filed on April 5, 1999 (agency
number 99-63-0398D) and advising complainant to contact an EEO
Counselor on several other claims. Complainant filed an appeal with the
Commission regarding the dismissed claims, which was assigned EEOC Appeal
No. 01997218. By letter dated December 7, 1999, the Commission informed
the agency that on November 9, 1999, revised regulations went into effect
which provided that where an agency believes that some but not all of
the claims in a complaint should be dismissed, the agency shall notify
the complainant in writing of its determination, the rationale for that
determination and that those claims will not be investigated, and shall
place a copy of the notice in the investigative file. The Commission
informed the agency that a determination not to investigate certain claims
is reviewable by an administrative judge if a hearing is requested on the
remainder of the complaint, but is not appealable until final action is
taken on the remainder of the complaint. The Commission noted that the
appeal in EEOC Appeal No. 01997218 involved the partial of dismissal of
claims from a complaint and consequently remanded those claims to the
agency for consolidation with the remainder of the complaint.
Subsequent to the agency's August 23, 1999 decision, complainant contacted
an EEO Counselor regarding those claims which were not dismissed from
her April 5, 1999 complaint. Complainant then filed another complaint
dated October 11, 1999, concerning those claims, which were previously
raised in the April 5, 1999 complaint. The Washington, D.C. Field Office
of the Commission issued a decision dated January 4, 2000, dismissing
those claims for failing to state a claim.
Initially, the Commission finds that the agency should have not required
complainant to file a new formal complaint regarding those claims
previously raised in the April 5, 1999 complaint. The claims presently
pending on appeal are part of the April 5, 1999 complaint, of which the
remainder has been remanded to the agency in EEOC Appeal No. 01997218.
In order to correct the fragmentation of the subject April 5, 1999
complaint, we shall vacate the instant decision and remand the matter
to the agency for consolidation with those claims previously remanded
in EEOC Appeal No. 01997218. Thereafter, the agency shall process both
sets of claims as one complaint in accordance with the Order below.
See Volume 64 Fed. Reg. 37,644, 37,656 (199) (to be codified as 29
C.F.R. � 1614.107(b)).
ORDER
The agency shall consolidate the instant matter with the other claims
raised in the subject April 5, 1999 complaint, which were previously
remanded in EEOC Appeal No. 01997218. The agency shall acknowledge to the
complainant that it has received the remanded claims and consolidated them
with the remainder of the claims within thirty (30) calendar days of the
date this decision becomes final. Thereafter, the agency shall process
all the claims 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).
A copy of the agency's letter of acknowledgment and notice of
consolidation 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 (M0300)
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); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (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:
April 12, 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
1On 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. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.