01983806
01-14-2000
Thomas V. Jenkins, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, (United States Mint), Agency.
Thomas V. Jenkins v. Department of the Treasury
01983806
January 14, 2000
Thomas V. Jenkins, )
Complainant, )
)
v. ) Appeal No. 01983806
) Agency No. 98-3121
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
(United States Mint), )
Agency. )
____________________________________)
DECISION
For the reasons that follow, the Commission sets aside the agency's
March 12, 1998 final decision (FAD), received by complainant's
then-representative on March 16, 1998, which FAD dismissed complainant's
February 13, 1998 formal EEO complaint.<1> The Commission accepts
complainant's April 14, 1998 appeal as timely, in accordance with EEOC
Order No. 960, as amended, and notes that neither party raised new
contentions on appeal.
The Commission finds that the agency has not properly defined
complainant's complaint. Smith v. U.S. Postal Service, EEOC Request
No. 05921017 (April 15, 1993). We also find the agency has not met
its burden of providing a clear record with sufficient evidence to
support the FAD. Hines v. U.S. Postal Service, EEOC Appeal No. 01923566
(May 13, 1993); Henry v. U.S. Postal Service, EEOC Request No. 05940897
(May 18, 1995).
The Commission finds, for example, that the FAD limited the issue in
complainant's complaint, filed on February 19, 1998, to complainant's
allegedly being harassed, for prohibited reasons, by his supervisor
on November 5, 1997. The FAD dismissed this claim for the stated
reason that complainant had previously filed a grievance on this
issue under a negotiated grievance procedure. See 64 Fed. Reg. 37,656
(1999)(to be codified and hereinafter referred to as 29 C.F.R. �
1614.107(a)(4)). However, we find that, in his complaint, complainant
raised additional claims that the FAD did not address. We find, for
example, that complainant raised an incident allegedly occurring in
July 1997 (pertaining to a purported detail), as well as the agency's
alleged failure to provide him with opportunities to upgrade his skills
during an unspecified period. It is not clear to the Commission whether
these additional claims are intended by complainant to be "live" claims
or intended to be background evidence in support of "live" claims.
The Commission further finds that these additional claims were not
raised during EEO counseling as required under applicable regulations.
See 29 C.F.R. � 1614.105(a). Finally, the Commission finds that,
although complainant raised the issue of the November 5, 1997 alleged
harassment by his supervisor in two grievances dated November 7, 1997,
the record is not entirely clear as to when those grievances were filed
with the agency. In this regard, the Commission also finds the record
ambiguous as to whether complainant could raise claims of discrimination
in those grievances under a collective bargaining agreement (CBA). See
29 C.F.R. � 1614.301(a). The Commission finds that, although it appears
from the CBA that employees could elect to raise claims of discrimination
in the negotiated grievance process or the EEO process, but not both,
the agency did not provide the Commission with Article 28 of the CBA
("Adverse and Disciplinary Actions").
The FAD is hereby VACATED, and complainant's complaint is hereby
REMANDED for further processing consistent with this decision and
applicable regulations. The parties are advised that this decision is
not a decision on the merits of complainant's complaints. The agency
shall comply with the Commission's ORDER set forth below.
ORDER
The agency is hereby ORDERED to take the following actions, with the
cooperation of complainant and his representative, if any, where and
when necessary to effect the Commission's ORDER:
1. The agency shall schedule in writing a meeting between complainant
and an EEO Counselor so an agreement can be reached on the issues in
complainant's February 13, 1998 complaint. After the meeting(s), the
Counselor must issue a new Counselor's report concerning the meeting(s)
and defining the complaint. Complainant shall not be required to
refile his February 13, 1998 complaint. Although complainant shall be
permitted to clarify his claims, he shall not be permitted to raise new
claims pertaining to his complaint. Complainant shall also be required
to distinguish those claims he intends to be "live" claims from those
claims intended to be background evidence in support of "live" claims.
2. The agency shall provide the Counselor with evidence as to when
complaint in fact filed his prior grievances, as well as relevant
portions of the CBA permitting complainant to raise claims of
discrimination in the negotiated grievance process, including but not
limited to Article 28, referenced above.
3. If an agreement can be reached on the claims in complainant's
complaint, then the agency shall issue to complainant a letter of
acceptance. If agreement cannot be reached on a definition of all the
claims in complainant's complaint, then the agency shall issue a new
final decision (FAD), with appeal rights to the Commission, defining
the complaint. Such a FAD must explicitly define all the claims in
the complaint, i.e., the agency shall not dismiss claims, de facto,
by failing to define or address claims.
4. If the agency intends to dismiss complainant's complaint in its
entirety, it must do so in a new FAD with appeal rights to the Commission,
stating all legal grounds, facts and documents relied on. The agency
may not dismiss complainant's complaint in part. If the agency does not
intend to accept all of complainant's claims for investigation, the agency
shall proceed in accordance with the Commission's revised regulations set
forth at 64 Fed. Reg. 37,656 (to be codified and hereinafter referred to
as 29 C.F.R. � 1614.107(b)).<2> In this regard, the agency shall ensure
that all relevant, as well as referenced, documents are produced and
made a part of the record in this case. The agency shall issue but one
FAD with regard to both definition of the claims and bases of alleged
discrimination, and any dismissal of complainant's complaint.
8. The agency shall complete all the above actions, including the
issuance of the Counselor's report and FAD if there is disagreement as
to the issues in complainant's February 13, 1998 complaint, and/or if
the agency dismisses complainant's February 13, 1998 complaint, within
ninety (90) calendar days of the date the Commission's decision becomes
final in this matter. The agency is advised that its failure to comply
with the Commission's ORDER may result in the drawing of an adverse
inference and finding of discrimination by the Commission, in addition
to other sanctions.
9. A copy of the agency's letter to the complainant arranging a meeting
with an EEO Counselor, and a copy of the acceptance letter and/or FAD
issued pursuant to instructions (3) and (4) above must be sent to the
Compliance Officer as referenced below, under "Implementation of the
Commission's Decision."
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 (R1199)
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:
Jan 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 Assistant
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.
229 C.F.R. � 1614.107(b) provides as follows:
Where the agency believes that some but not all of the claims in a
complaint should be dismissed for the reasons contained in...this
section, 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. A determination under this paragraph 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.