01984942
08-26-1999
Wendy A. Post v. Department of Defense
01984942
August 26, 1999
Wendy A. Post, )
Appellant, )
)
v. ) Appeal No. 01984942
) Agency No. XL-97-046
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency), )
Agency. )
______________________________)
DECISION
For the reasons set forth below, the Commission sets aside the agency's
May 6, 1998 final decision (FAD), dismissing in part appellant's July
14, 1997 formal EEO complaint for failure to state a claim and untimely
EEO Counselor contact, in accordance with 29 C.F.R. ��1614.107(a) and
.107(b), respectively.<1> We are not persuaded by the agency's response
to appellant's appeal<2> to reach a contrary conclusion.
The FAD accepted appellant's allegation that she was discriminated
against on the basis of sex (female) when the agency allegedly paid her
less than it paid a male employee who performed the same duties she
performed.<3> The FAD dismissed 18 other allegations for the reasons
identified above, including a claim of sexual harassment, and claims
pertaining to disability discrimination (alcoholism).<4>
We find, from a fair reading of the record and appellant's complaint, that
appellant has alleged ongoing harassment and a hostile work environment.
Therefore, we find the agency improperly treated appellant's allegations
in piecemeal fashion. See Drake v. Department of the Air Force, EEOC
Request No. 05970689 (March 29, 1999); Tilden v. Department of the Army,
EEOC Appeal No. 01976352 (July 2, 1998).
We further find, with regard to the present matter, that the agency has
not properly defined appellant's complaint. See Smith v. U.S. Postal
Service, EEOC Request No. 05921017 (April 15, 1993). We find, in the
present case, that appellant's complaint contained numerous allegations,
some of which appear to be vague. The Commission is unable to determine
which, if any, allegations appellant intended to be used as background
allegations in support of "live" claims, and which she intended to
pursue as "live" claims. We also find the agency improperly dismissed de
facto more than two dozen allegations in appellant's complaint. We find
appellant's appeal fails to clarify the issues in this matter. Instead,
we find appellant has submitted on appeal additional allegations of
discrimination,<5> based on reprisal,<6> in the form of a December 11,
1997 post-complaint, but pre-FAD, letter to the Equal Employment Manager
(EEM).<7>
Accordingly, the FAD is hereby VACATED, and this matter is hereby
REMANDED for further processing consistent with this 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 process appellant's complaint in accordance with
29 C.F.R. Part 1614 and instructions in this decision. Specifically,
the agency shall:
1. Schedule in writing a meeting between appellant and an EEO Counselor
so an agreement can be reached on the issues in appellant's July 14, 1997
complaint. Appellant and her representative, if any, shall cooperate with
the EEO Counselor, as well as the agency, in complying with this Order.
After the meeting(s), the Counselor must issue a new Counselor's report
concerning the meeting(s) and defining the complaint. Appellant shall not
be required to refile her complaint of July 14, 1997. Although appellant
shall be permitted to clarify her allegations, she shall not be permitted
to raise new allegations pertaining to her complaint.
2. Appellant shall provide the Counselor with all bases of
discrimination she is alleging, and relevant dates of occurrence
of alleged discriminatory events, as well as the specifics of all
incidents of alleged discrimination including, but not limited to, the
names and positions of those individuals who allegedly discriminated
against appellant.
3. Appellant shall advise the Counselor which, if any, allegations
are intended as background allegations in support of live allegations;
and which are intended to be live allegations.
4. Appellant shall also advise the Counselor if she is represented;
the identify of the representative; whether the representative is an
attorney or not; and confirmation that the representative is, in fact,
representing appellant (e.g., by having the representative provide a
letter of representation to the Counselor).
5. If an agreement can be reached on the definition of all of appellant's
allegations, and the agency accepts each allegation for investigation,
then the agency shall issue to appellant a letter of acceptance.
However, if agreement cannot be reached on a definition of the issues
in appellant's complaint or the agency seeks to dismiss appellant's
allegations, in whole or in part, then the agency shall issue a new final
agency decision (FAD), with appeal rights to the Commission. The new
FAD shall explicitly define all the allegations in the complaint, i.e.,
the agency shall not dismiss allegations, de facto, by failing to define
or address allegations. In addition, the Counselor's report and FAD
shall spell out and explain all agency abbreviations (such as "PROCAS").
6. In the FAD referenced in item (5) above, the agency shall also
identify all allegations, if any, it is accepting for investigation;
and all allegations, if any, it is dismissing. If the agency wishes
to dismiss any allegations, then it must provide the legal grounds,
factual bases, and all documents relied on for dismissal.
7. The agency shall complete all the above actions, including the
issuance of the Counselor's report and FAD if there is disagreement as
to the issues in appellant's complaint and/or if the agency dismisses any
allegations, within ninety (90) calendar days of the date the Commission's
decision becomes final in this matter.
8. A copy of the agency's letter to appellant arranging a meeting with
an EEO Counselor, and a copy of the acceptance letter and/or FAD issued
pursuant to instructions (5) and (6) above, must be sent 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:
August 26, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1We note, for the record, that appellant is seeking, inter alia,
compensatory damages in this matter.
2Appellant indicated she received the FAD on May 11, 1998. The record
does not reveal a different date. In the absence of a postmark indicating
the date appellant filed her appeal, the Commission has applied the
five-day rule and finds appellant's appeal, which the Commission received
on June 8, 1998, to be timely. See 29 C.F.R. �1614.402 and .604, in
pertinent parts.
3See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. And see the Equal Pay Act of 1963, 29
U.S.C. �206(d) et seq.
4See Section 501 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. �791 et seq.
5With regard to her additional allegations, the Commission suggests that
appellant seek EEO counseling if she wants to pursue those allegations
further.
6Reprisal is the subject of another appeal filed by appellant, involving
the same agency, docketed as EEOC Appeal No. 01984941. That appeal will
be the subject of a separate decision by the Commission.
7The Commission notes, with concern, the fact that EEM signed the FAD in
the present matter. The appearance of conflict created by the apparent
merger of the EEO function and the agency representation function
jeopardizes the integrity of the EEO process and can adversely affect
the confidence agency employees have in the EEO process. In this regard,
see the Commission's Management Directive (EEO MD-110) for 29 C.F.R. Part
1614 (October 22, 1992).