Vickie D. Fox, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJan 8, 1999
01970465 (E.E.O.C. Jan. 8, 1999)

01970465

01-08-1999

Vickie D. Fox, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Vickie D. Fox v. Department of the Army

01970465

January 8, 1999

Vickie D. Fox, )

Appellant, )

)

v. ) Appeal No. 01970465

) Agency No. BQECFO9606G0350

)

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

)

DECISION

The Commission finds that the agency's October 3, 1996 final decision

dismissing one of the allegations of appellant's formal complaint, on

the basis that she failed to bring said allegation to the attention

of the EEO counselor, is proper pursuant to the provisions of 29

C.F.R. �1614.107(b).

The record shows that appellant alleged that she has been discriminated

against on the bases of race (Black) and reprisal for prior EEO activity

when: (1) her supervisor and coworkers treat her differently, with a

disparaging attitude and their failure to communicate with her; (2)

her supervisor and director retaliate against her by speaking harshly

to her; and, (3) a coworker made a racial comment to her. During the

inquiry of appellant's informal complaint, one of the witnesses stated

that appellant had said that she would blow up the office like a postal

worker did. In its final decision, the agency accepted allegations (1),

(2) and (3) for investigation. However, the agency did not accept the

allegation regarding the threatening remark after finding that appellant

had not raised it with the EEO Counselor. We agree. EEOC Regulation 29

C.F.R.�1614.107(b) provides that an agency shall dismiss a complaint or

portion of a complaint that raises a matter that has not been brought

to the attention of the EEO counselor and is not like or related to

a matter that has been brought to the attention of the counselor.

The record shows that the dismissed allegation is not like or related

to the remaining allegations raised by appellant with the EEO counselor.

Accordingly, the agency's decision dismissing the allegation concerning

the threatening remark, is AFFIRMED.

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 (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 consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 8, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations