01a02169
05-26-2000
Wanda W. Merrick, Complainant, v. Madeline K. Albright, Secretary, Department of State, Agency.
Wanda W. Merrick, )
Complainant, )
)
v. ) Appeal No. 01A02169
Madeline K. Albright, ) Agency No. 99-50
Secretary, )
Department of State, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from an
agency's decision dated November 5, 1999 dismissing 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, complainant alleged that
she was subjected to discrimination on the bases of race (black), sex
(female), age (47), and in reprisal for prior EEO activity when:
On July 7, 1999, complainant was notified of her non-selection for Merit
Promotion Vacancy Announcement Number CA 98-90, Passport Specialist,
GS-967-5/7.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and
hereinafter referred to as 29 C.F.R. � 1614.107(a)(2)), for raising a
matter that has not been brought to the attention of an EEO Counselor.
Specifically, the agency claimed that the counselor complainant listed
on her formal complaint, did not serve as complainant's EEO Counselor.
Thus, the agency stated that complainant did not contact or consult any
counselor with regard to her complaint of discrimination.
On appeal, complainant states that she attempted to contact a counselor
prior to filing her complaint but had difficulty in speaking to a
counselor due to problems with the phone system.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action. We note
that given the important role our regulations give informal resolution
of complaints (see 29 C.F.R. ��1614.102, 105), agencies are not required
to fully process matters which have not undergone counseling.
Upon review of the record, we find that the agency properly dismissed
complainant's complaint for failure to contact an EEO Counselor. We note
that the record does not contain an EEO Counselor's report, notice of
right to file a formal complaint, or any indication that complainant
contacted the individual she named as an EEO Counselor in her formal
complaint. In addition, in her formal complaint, complainant listed
the individual she allegedly contacted as both her representative and
as her EEO Counselor. We also note that the close proximity in time
between the date of the alleged discriminatory event, July 7, 1999,
and the date complainant filed her formal complaint, August 18, 1999,
support the position that complainant did not contact an EEO Counselor
prior to filing her formal complaint. Furthermore, on appeal, complainant
stated that she �had tried on several occasions to get in touch with one
of the counselors� but she did not indicate that she actually spoke to
the individual named as an EEO Counselor in her formal complaint prior
to filing her formal complaint.
Accordingly, the agency's decision to dismiss complainant's complaint
was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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. 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 (Z1199)
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:
May 26, 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:
_______________ __________________________
Date 1On 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.