01991028
01-05-2000
Trumilla Foreman, Complainant, v. John W. Carlin, Archivist of the United States, National Archives and Records Administration, Agency.
Trumilla Foreman v. National Archives and Records Administration
01991028
January 5, 2000
Trumilla Foreman, )
Complainant, )
)
v. ) Appeal No. 01991028
) Agency No. NARA 9824
John W. Carlin, )
Archivist of the United States, )
National Archives and Records )
Administration, )
Agency. )
________________________________)
DECISION
On November 2, 1998, the complainant filed a timely appeal with this
Commission from a final agency decision (FAD) dated October 7, 1998,
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. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> In her complaint,
the complainant alleged that she was subjected to discrimination on the
bases of race (Black), sex (female), disability (mental and physical),
reprisal and age (over 40) when:
she was sexually harassed by her former first-line supervisor;
she was treated differently than others when she requested sick leave
for herself or her sick child;
she was often not accommodated even though she brought her disabilities
to the attention of her supervisors;
she was treated differently than white male coworkers in terms of rights
and equal opportunities in terms of work assignments for advancement
and proper resources for job performance;
she was not given the same coaching and proper supervision that male
coworkers were afforded;
she was forced to work in and subjected to a hostile and distressful
workplace environment;
she was unfairly given a proposal of removal;
she was falsely accused of pushing the proposing official at a copy
machine in May 1998;
the agency failed to properly investigate her appeal/grievance of the
unfair proposal of removal.
By letter dated October 7, 1998, the agency informed the complainant
that it accepted claims (1-3) for investigation and did not accept
claims (4-6) for investigation because they had not yet been counseled.
The agency dismissed claims (7-9) pursuant to EEOC Regulation 64 Fed.
Reg. 37,644, 37, 656 (1999)(to be codified and hereinafter referred
to as 29 C.F.R. � 1614.107(a)(4)), because the complainant elected to
bring these claims before the Merit Systems Protection Board (MSPB) on
July 27, 1998, and had raised them before the Office of Special Counsel
(OSC) on or about May 28, 1998.
The instant appeal followed. By letter dated December 28, 1998, the
agency informed the complainant that they were rescinding the October
7, 1998 letter because MSPB had dismissed her case without prejudice
and OSC had notified her that it was terminating their investigation.
The agency stated that they were consolidating claims (7-9) into one
allegation (concerning her removal which was effective June 26, 1998)
and accepting it for investigation with claims (1-3). The agency again
informed the complainant that claims (4-6) had not been counseled and
were still not accepted.
Subsequently, by letter dated February 3, 1999, the agency clarified its
position in its processing of the complainant's complaint. It again
stated that claims (1-3) and consolidated claims (7-9) were accepted
for investigation. It further stated that claims (4-6) were in the
process of being counseled which had to occur prior to a determination
of whether to accept them or not.
Based on the evidence currently before the Commission we find that all of
the complainant's claims in her complaint are currently being processed.
Therefore, because no claims remain dismissed, there is nothing further
for the Commission to review. See 64 Fed. Reg. 37,644, 37659 (1999)(to
be codified at 29 C.F.R. � 1614.401).
The instant appeal is DISMISSED.
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).
RIGHT TO FILE A CIVIL ACTION (S0993)
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:
Jan 5, 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:
_________________________ __________________________
1 On 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.