01A01215
10-03-2001
Debra Moulton, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency) Agency.
Debra Moulton v. Department of Defense
01A01215 & 01990592
October 3, 2001
.
Debra Moulton,
Complainant,
v.
William S. Cohen,
Secretary,
Department of Defense,
(Defense Logistics Agency)
Agency.
Appeal Nos. 01A01215 & 01990592
Agency No. XL-98-020
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning her complaint of unlawful employment discrimination in
violation of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
(Title VII). The appeals are consolidated and accepted pursuant to 29
C.F.R.�� 1614.405 and 1614.606. For the following reasons the decision
is VACATED AND REMANDED. Complainant alleges that she was discriminated
against on the basis of national origin (Hispanic), and gender (female)
when:
she was prevented from applying or competing for the position of Chief,
Management Services Office;
she received a lesser monetary award than certain male employees;
After a thorough review of the record, we find that the evidence is
insufficient in certain critical respects to allow a determination
on the merits of complainant's claims of discrimination under any of
complainant's alleged bases. Our regulations and the EEOC Management
Directive (MD) 110, require agencies to develop a complete and impartial
factual record. See 29 C.F.R. � 1614.108(b); MD 110 Chapter 6-1(11/9/99).
As indicated in more detail in the order below, basic information
regarding the national origin and gender of the employees who gave
testimony was omitted as well as other comparative information which
would tend to prove or disprove discrimination. See Tyndall v. Veterans
Administration, EEOC Appeal No. 01944524 (September 20, 1995).
We are most concerned with the complete absence of data comparing
similarly situated employees at the same grade level as the complainant of
the DCMC office as a whole, according to their national origin and gender.
Similarly, because this case alleges a discriminatory non-promotion
to GS-13, the agency was bound to produce a breakdown of the office by
gender and national origin of its GS-13 employees in 1995 and in 1997.
The Commission considers this information critical in a case alleging
national origin and gender discrimination in promotions and awards.
Although the agency provided some limited information in its investigation
of the issue of awards, it failed to provide comparative data by grade
level which would tend to show the complainant's treatment when
compared to other employees in the organization who were not in her
protected groups.
CONCLUSION
Accordingly, inasmuch as the above-referenced evidence presents an
incomplete record regarding the merits of the complainant's claims,
we conclude that the record is inadequate to permit adjudication of
the complaint, and we therefore, VACATE AND REMAND the agency's final
decision.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
1. The agency shall ensure that the investigator obtains information
concerning the national origin and gender of all employees of the Defense
Contract Management Command at the relevant time periods ;
2. The agency shall produce a list of those GS-12 employees eligible to
compete for the position of Chief, Management Services Office in 1995
noting, for each their national origin and gender.
3. The agency shall produce the personnel forms SF-52s and 50s related
to the appointment and subsequent promotion of employee A to the position
of Chief, Management Services Office.
4. The agency shall resubmit Exhibit 9 page 8 of its Report of
Investigation on the issue of awards to include comparative data by
position/title, grade, national origin, and gender.
The agency shall resubmit pages 14 through 20 (organizational charts)
of its Report of Investigation on the issue of the non-competitive
promotions indicating the national origin and gender of the occupants of
each position indicated therein and the position held by the complainant
and employee A respectively.
The agency shall produce copies of the position descriptions of the
complainant and employee A both prior to and after the �Storefront
reorganization.�
The agency shall produce a statement of the qualifications education
and experience of employee A as of 1995.
The agency shall ensure that the supplemental investigation is completed
and returned to the Compliance Officer within one-hundred and twenty (120)
calendar days of the date the agency receives this Order. The agency
shall also provide a copy of the supplemental record to the complainant.
Thereafter, the complainant shall have twenty (20) calendar days of
her receipt of the agency's supplemental investigation, to submit a
response to the supplemental investigation to the Compliance Officer.
Upon receipt by the Compliance Officer, the supplemental record
will be included in the appeal file and the appeal will be processed
appropriately.
In accordance with the EEOC MD-110, Chapter 9-23 as revised (November 9,
1999) the agency shall give priority to this remanded case in order to
comply with the time frames contained in this Order.
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
October 3, 2001
Date