01993199_r
07-27-2001
Yvonne L. Kelsey v. Department of the Army
01993199
July 27, 2001
.
Yvonne L. Kelsey,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army, ,
Agency.
Appeal No. 01993199
Agency No. AUGAFO9810I0230
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated February 18, 1999 dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The agency characterized her complaint as alleging that she was subjected
to discrimination on the bases of race and sex when: (1) she was denied
access to cross training thereby severely limiting her promotion and
career enhancement opportunities; (2) she was denied the opportunity to
take on higher level tasks and activities, which increase her skills and
experience, thereby severely limiting her promotion and career advancement
opportunities; (3) she was given lower performance ratings on her annual
and semi-annual performance evaluation than her record warranted, and her
duties were not properly evaluated; (4) she was given a job description
that did not accurately reflect her duties and responsibilities; (5) she
was not properly recognized or regarded for her work and did not receive
performance awards that she deserved; (6) she was denied promotions; (7)
she was denied upgrades; (8) she was not hired into positions for which
she was qualified; (8) she was not promoted into positions for which
she was qualified; and (9) she was denied training in April/May 1998.
In its decision, the agency dismissed claims (1) through (4) and
(6) through (8) because they were not raised with an EEO Counselor,
and alternatively, because complainant failed to respond adequately to
the agency's January 7, 1999 request for information. The agency also
dismissed claim (5) as stating the same claim as that raised in agency
complaint number AUGAFO9808I0110, and claim (9) for untimely EEO contact.
Upon review of the record, we find that claims (1) through (4) and (6)
through (8) were improperly dismissed. First, it is clear from the
record that claims (1) through (4) and (6) through (8) are matters
that complainant raised with the EEO Counselor, or are matters like
or related to matters raised with the Counselor, and were therefore
improperly dismissed under 29 C.F.R. � 1614.107(a)(2). These claims were
also improperly dismissed under 29 C.F.R. � 1614.107(a)(7), for failure
to cooperate. In the present case, the agency dismissed the claims
based on complainant's failure to adequately respond to its January 7,
1999 request for information concerning her complaint. The Commission
finds that complainant's alleged failure to adequately respond to one
request for information does not, in the instant matter, rise to the
level where dismissal for failure to cooperate is appropriate. Therefore,
we find that the agency improperly dismissed claims (1) through (4) and
(6) through (8) for failure to cooperate.
We also find that claim (9) was improperly dismissed for untimely EEO
contact. The record clearly indicates that complainant claimed she had
been discriminated against in the above stated manner on a continuous
and ongoing basis, and that her claim that she was denied training in
April and May 1996 was merely an example of the ongoing discrimination
in the area of training. As complainant specifically indicated that
her claims were �up to and including the present time,� we find that
the April and May 1998 examples of denied training are part of her
larger claim of continuous denial of training opportunities. As such,
complainant's September 18, 1998 EEO Counselor contact was timely.
Finally, regarding claim (5), we find that there is insufficient evidence
in the record to determine if complainant is claiming the same issue as
that raised in agency complaint number AUGAFO9808I0110, where she claimed
discriminatory denial of a performance award. Although complainant
asserts she was not properly recognized for her work and did not receive
performance awards that she deserved, she does not provide enough specific
information for the Commission to ascertain if the claims are identical.
Therefore, we REMAND claim (5) to the agency to supplement the record
with information concerning the specifics of claim (5).
Accordingly, the agency's dismissal of complainant's claim (5) is VACATED.
The agency's dismissal of claims (1) through (4) and (6) through (9),
as defined by the Commission herein, is REVERSED, and claims (1) through
(9) are REMANDED to the agency for further processing in accordance with
this decision and the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes final,
the agency shall contact complainant and request clarification of claim
(5), that she was not properly recognized for her work and did not receive
performance awards that she deserved. In particular, the agency shall
request complainant to specify the scope of her claim and the period of
time she believes she should have received performance awards.
Within forty-five (45) calendar days of the date this decision becomes
final, the agency shall issue a notice of processing and/or a new decision
regarding claim (5).
With regard to claims (1) through (4) and (6) through (9), the agency
shall process the claims in accordance with 29 C.F.R. � 1614.108.
The agency shall acknowledge to the complainant that it has received
the remanded claims within thirty (30) calendar days of the date this
decision becomes final. The agency shall issue to complainant a copy
of the investigative file and also shall notify complainant of the
appropriate rights within one hundred fifty (150) calendar days of the
date this decision becomes final, unless the matter is otherwise resolved
prior to that time. If the complainant requests a final decision without
a hearing, the agency shall issue a final decision within sixty (60)
days of receipt of complainant's request.
A copy of the agency's notice of processing and/or new decision
regarding claim (5), and copy of the agency's letter of acknowledgment
to complainant and a copy of the notice that transmits the investigative
file and notice of rights concerning the remaining claims must be sent
to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 27, 2001
__________________
Date