Thomasv.Jenkins, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, (United States Mint), Agency.

Equal Employment Opportunity CommissionJan 14, 2000
01983806 (E.E.O.C. Jan. 14, 2000)

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.