Vandetta Mack, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJan 28, 1999
01981637 (E.E.O.C. Jan. 28, 1999)

01981637

01-28-1999

Vandetta Mack, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Vandetta Mack v. Department of the Army

01981637

January 28, 1999

Vandetta Mack, )

Appellant, )

)

v. ) Appeal No. 01981637

)

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

___________________________________)

DECISION

Appellant filed the instant appeal from the agency's decision dated

November 19, 1997 dismissing appellant's complaint. In the complaint

appellant alleged that she was sexually harassed by her supervisor and

that she was harassed on the basis of age.

The agency dismissed the basis of age for failure to state a claim.

The Commission finds that because appellant's age was under the protected

age of 40 she has failed to state a claim of age discrimination under the

Age Discrimination in Employment Act. Therefore, we find that the agency

properly dismissed the basis of age pursuant to 29 C.F.R. �1614.107(a).

The agency dismissed the sexual harassment allegation on the grounds

that appellant elected to pursue the matter in a negotiated grievance

procedure. EEOC Regulation 29 C.F.R. �1614.301(a) provides: "An election

to proceed under a negotiated grievance procedure is indicated by the

filing of a timely written grievance." Although there is evidence

indicating that a grievance was filed, there is no indication showing

that the grievance was "written" as required for an election under

�1614.301(a). The agency admits on appeal that the negotiated agreement

provides that a grievance shall "first be taken up orally . . . with

the employee's immediate supervisor." The agency, despite extensive

discussion of the issue on appeal, never claims that the grievance

was ever filed in writing. Therefore, we find that the agency has

not shown that appellant elected to raise the matter in a negotiated

grievance procedure. The Commission finds that dismissal of the sexual

harassment claim under �1614.107(d) was improper.

The agency also dismissed the sexual harassment claim on the grounds that

appellant failed to timely contact an EEO Counselor. The agency found

that the alleged harassment occurred from March 18, 1996 through March 18,

1997 (appellant's probationary period). Appellant has not disputed the

agency's framing of the complaint. Although the EEO Counseling Report

states that appellant initially contacted an EEO Counselor on July 28,

1997, the EEO Counseling Report also states that appellant initially

contacted the EEO Office in June 1997. The record also indicates that

appellant may not have been aware of the time frame for contacting an EEO

Counselor until she received Prevention of Sexual Harassment Training in

May 1997. The agency has not addressed appellant's apparent claim that

she contacted an EEO Counselor in June 1997. Therefore, we shall remand

the matter so that the agency may supplement the record with evidence

addressing whether appellant contacted an EEO Counselor in June 1997.

The agency's decision dismissing the basis of age discrimination is

AFFIRMED. The agency's decision dismissing all allegations of sexual

harassment is VACATED and we REMAND these allegations of sexual harassment

to the agency for further processing in accordance with this decision

and applicable regulations.

ORDER

The agency shall place evidence into the record, such as affidavits from

the EEO Office and the person appellant claims she contacted in June 1997,

addressing whether appellant initially contacted an EEO Counselor (or

the EEO Office) in June 1997 with the intent of filing an EEO complaint.

Within 60 days of the date this decision becomes final the agency shall

either issue a letter accepting the remanded portion of the complaint

for investigation or shall issue a new decision dismissing the remanded

portion of the complaint. A copy of the agency's letter accepting the

remanded portion of the complaint for investigation or a copy of the new

decision dismissing the remanded portion of the complaint shall be sent

to the Compliance Officer referenced herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (T0993)

This decision affirms the agency's final decision in part, but it also

requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action

in an appropriate United States District Court on both that portion of

your complaint which the Commission has affirmed AND that portion of the

complaint which has been remanded for continued administrative processing.

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 your appeal with the

Commission, until such time as the agency issues its final decision

on your complaint. 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 (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:

January 28, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations