Phyllis Cayse v. Federal Mediation and Conciliation Service 01985294 May 11, 2001 . Phyllis Cayse, Complainant, v. C. Richard Barnes, Director, Federal Mediation and Conciliation Service, Agency. Appeal No. 01985294<1> DECISION Complainant timely initiated an appeal from a final agency decision (FAD) concerning 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.; and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The appeal is accepted pursuant to 29 C.F.R. § 1614.405. Complainant alleged that she was discriminated against on the bases of sex (female), age (67), and reprisal (prior EEO activity under the ADEA) when she was suspended for seven (7) calendar days, effective January 12-18, 1998, for making unfounded and potentially damaging statements concerning the Deputy Director of the agency. The record reveals that during the relevant time, complainant was employed as a Mediator, GS-241-14, at the agency's Glendale, California Field Office. Believing she was a victim of discrimination, complainant sought EEO counseling and subsequently filed a formal complaint on February 6, 1998. Complainant then agreed to participate in the Alternative Dispute Resolution (ADR) process with the agency, but the parties failed to reach a settlement. Thereupon, the agency issued a final decision without making an investigation or offering complainant the opportunity of a hearing. The Commission notes that according to EEOC Regulation 29 C.F.R. § 1614.104, agency processing of complaints must include an investigation and offer of a hearing, and the processing of complaints must conform to the Commission's Management Directives. In this regard, MD-110, Chap. 3, II A. 2 (p. 3-3) stipulates that: ... if an individual enters into an ADR procedure after a formal complaint is filed, the time period for processing the complaint may be extended by agreement for not more than 90 days. If the dispute is not resolved, the complaint must be processed within the extended time period. Based upon the foregoing Regulation and Management Directive, it is therefore the decision of the EEOC to VACATE the FAD and to REMAND the complaint back to the agency for continued processing as ordered below. ORDER The agency is ORDERED to conduct an investigation concerning complainant's suspension for seven (7) calendar days for making negative comments about a superior. The investigation must be completed within sixty (60) calendar days of the date this decision becomes final. A copy of the agency's letter to complainant transmitting a copy of the completed investigative file and including the offer of a hearing, as required by 29 C.F.R. § 1614.108(f), must be submitted to the Compliance Officer, as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900) 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)(Supp. V 1993). 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 (M0900) 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 May 11, 2001 Date 1The record forwarded by the agency on appeal does not indicate an agency complaint number.