Verdi E. Mathis, Appellant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionNov 8, 1999
01991491 (E.E.O.C. Nov. 8, 1999)

01991491

11-08-1999

Verdi E. Mathis, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Verdi E. Mathis v. Department of the Treasury

01991491

November 8, 1999

Verdi E. Mathis, )

Appellant, )

)

v. ) Appeal No. 01991491

) Agency No. 98-1366

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Agency. )

______________________________)

DECISION

On December 14, 1998, appellant filed an appeal from the agency's November

6, 1998 final decision (FAD), which partially dismissed appellant's July

29, 1998 formal EEO complaint.<1> For the reasons set forth below,

the Commission vacates the FAD. We are not persuaded by the agency's

response to appellant's appeal to reach a contrary determination.

The Commission finds that, although appellant filed an individual formal

EEO complaint in this matter, which complaint was the subject of the FAD,

appellant was one of ten present and former agency employees who sought

to file a "Consolidated Complaint of Race Discrimination."<2> It appears

that the employees, represented by a co-worker, were provided with EEO

counseling and notice of the right to file a formal EEO complaint.

We find the "Consolidated Complaint of Race Discrimination" to be,

in effect, a "group complaint." As the Commission previously stated:

[T]here are no regulations for processing a �group complaint.' The

regulations provide for the processing of individual, class,

and consolidated individual complaints. [T]he complainants have

clearly indicated their desire to have their complaints processed

jointly. Consequently, the agency should have processed the informal

complaints individually, issued each complainant a separate notice

of right to file a complaint, and notified the complainants of the

consolidation of their complaints for joint processing in accordance

with 29 C.F.R. �1614.606, once their formal complaints were filed."

See Carson v. Department of Veterans Affairs, EEOC Appeal No. 01955396

(June 7, 1996). Cf. Hines v. Department of the Air Force, EEOC Request

No. 05940917 (January 29, 1996) (class complaints).

It appears that appellant and nine other present or former agency

employees were counseled, and individually notified of their right to

file a complaint. However, the record reflects that only appellant's

individual complaint is the subject of the instant FAD and this appeal.

We note that the only allegation dismissed by the FAD, and expressly

appealed by appellant, was her claim that, for prohibited reasons,

she was allegedly "coerced" to accept a voluntary downgrade. The FAD

had dismissed this allegation for untimely EEO Counselor contact.<3>

See 29 C.F.R. ��1614.105(a)(1) and .107(b).

Having reviewed the entire record in the present case, the arguments

on appeal including those not expressly addressed herein, and for

the foregoing reasons, the Commission hereby VACATES the FAD and

REMANDS appellant's complaint for further processing consistent with

the Commission's decision and applicable regulations. The parties

are advised that this decision is not a decision on the merits of

appellant's complaint. The agency shall comply with the Commission's

ORDER set forth below.

ORDER

The agency is ORDERED to conduct a supplemental investigation and take

other appropriate actions as follows:

1. The agency shall investigate whether appellant's nine other

co-workers, identified in the "Consolidated Complaint," filed individual

complaints subsequent to their receipt of a notice of the right to

file a formal complaint, and, if so, the status of those complaints. If

necessary, in the event any of the complainants did not receive a copy of

the notice of the right to file a formal EEO complaint, the agency shall

ensure that each such complainant receives the appropriate notice.

2. The agency shall issue a report of supplemental investigation at

the conclusion of the supplemental investigation.

3. The agency shall consolidate all complaints that were filed, if

any, including appellant's, or explain why those complaints were not

consolidated or could not be consolidated. If the agency dismisses any

complaints, in whole or in part, including appellant's, it shall render

such dismissals, if any, by issuing a new final decision, with appeal

rights to the Commission. The final decision shall state legal grounds

and factual bases for dismissal, as well as identify any documents relied

upon.

4. All ordered activities, including but not limited to the report of

supplemental investigation, issuance of notices of the right to file a

formal EEO complaint, any order of consolidation, and issuance of any

new final decision shall be concluded within ninety (90) calendar days

from the date that this decision becomes final. A copy of any new final

decision, report of supplemental investigation, notice of consolidation,

and all relevant and applicable notices and documents shall be submitted

to the Compliance Officer, as referenced below.

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 (R0993)

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. 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:

11/08/1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1On appeal, appellant claims that she received the FAD on November 14,

1998. In the absence of evidence to the contrary, the Commission accepts

appellant's appeal as timely. See 29 C.F.R. ��1614.402 and .604, in

pertinent parts.

2See Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. �2000e et seq.

3Under the circumstances of this case, we need not address

whether appellant's apparent claim of "constructive demotion" or

"constructive downgrade" renders her complaint a "mixed case" that

is appealable to the Merit Systems Protection Board (MSPB). See 29

C.F.R. �1614.302. Cf. Youngblood v. U.S. Postal Service, EEOC Request

No. 05970830 (June 17, 1999).