01a00565
04-14-2000
Sieldra J. Square, Complainant, v. Madeline K. Albright, Secretary, Department of State, Agency.
Sieldra J. Square, )
Complainant, )
)
v. ) Appeal No. 01A00565
) Agency No. 99-51
Madeline K. Albright, )
Secretary, )
Department of State, )
Agency. )
____________________________________)
DECISION
On October 22, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) issued on September 21,
1999, pertaining to her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> Pursuant to 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified at 29 C.F.R. � 1614.405), the Commission accepts
the complainant's appeal from the agency's final decision in the
above-entitled matter.
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed the
present complaint for failure to contact an EEO Counselor.
BACKGROUND
The record reflects that for the relevant period of time, complainant
was employed by the Department of State as a processing clerk, GS-5.
Complainant, in her formal complaint, states that she applied for the
position of Passport Specialist, GS-967-5/7/9, but was later notified
on July 6, 1999 that she was not selected. The record further reveals
that complainant attempted to reach an EEO Counselor prior to filing a
formal complaint, but complainant claims that the EEO Counselor never
returned her calls requesting counseling. Therefore, on August 19,
1999, complainant filed a formal complaint claiming she was the victim of
unlawful employment discrimination on the bases of her gender (female),
race (African-American) and reprisal (prior EEO activity).
Subsequently, on September 21, 1999, the agency issued a final decision
dismissing the present complaint for failure to initiate contact with an
EEO Counselor. In its final decision, the agency found that complainant
was familiar with the EEO process and the requirement of initially
contacting an EEO Counselor because complaint has previously engaged
the EEO process.
On appeal, complainant states that she did in fact attempt to contact
an EEO Counselor (�E1"), but E1 never returned any of complainant's
telephone calls. The agency, in their response to complainant's appeal,
fails to address complainant's assertion that she attempted to contact
E1 but she never returned complainant's calls.
ANALYSIS AND FINDINGS
After a review of the entire record, including all statement s submitted
on appeal, the Commission finds the record to be incomplete and
therefore, we cannot issue a decision. Specifically, the Commission
finds that the record is incomplete as to whether complainant called E1
to initiate EEO counseling. Furthermore, the record does not establish
the date complainant received notice that she was not selected for the
above mentioned position. Rather, the record only indicated that the
notice was issued on July 2, 1999 and mailed on July 6, 1999, but fails
to establish when complainant actually received the notice. For the
above following reasons, the Commission hereby VACATES the agency's final
decision and REMANDS the complaint back to the agency for a supplemental
investigation.
The agency is ORDERED to complete the following actions within sixty
(60) calendar days from the date this decision becomes final:
1. The agency shall supply information establishing whether complainant
called EEO Counselor E1 in an attempt to initiate EEO Counselor contact.
The agency will supply the date(s) and time(s) of any call(s) made to E1.
In the case there are not records of any phone call (s) made to E1,
the agency shall obtain a sworn statement from E1 as to the date(s)
and time(s) complainant called E1.
2. The agency shall conduct a supplemental investigation to determine
when complainant received the notice informing her that she was not
selected for the position of Passport Specialist GS-967-5/7/9.
3. The agency shall submit to the Compliance Officer as referenced below
evidence that it has complied with paragraphs 1 and 2 of this Order.
4. The agency shall issue a new decision with appropriate appeal rights.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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. 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:
April 14, 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 Assistant1On 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.