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