01980936
10-23-1998
Joan R. Stephens, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Joan R. Stephens, )
Appellant, )
)
)
v. ) Appeal No. 01980936
) Agency No. 5F0J97008
)
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DECISION
On November 8, 1997, appellant filed a timely appeal with this Commission
from a final agency decision ("FAD") received by her on October 11,
1997, pertaining to 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. In her complaint, appellant alleged that she
was subjected to discrimination on the bases of sex (female) and in
reprisal for prior EEO activity when:
Appellant's supervisor subjected appellant to continued harassment;
The agency's Chief EEO Counselor subjected appellant to mental
harassment;
Workcenter supervisors and the agency's Chief EEO Counselor subjected
appellant to a conspiracy of harassment;
Appellant was denied due process when the official bulletin board's
EEO notice contained incorrect information regarding the EEO Counselor
names and phone numbers;
Appellant was denied due process when, in a May 15, 1997 letter from a
management official, appellant was not advised of her rights to appeal
to the Commission the decision rendered therein;
Appellant was denied due process when, in April 1991, the base commander
at that time advised appellant in writing of her right to file a civil
action on a dismissed complaint, but failed to advise her that she had
appeal rights to the Commission;
Appellant was authorized only four (4) hours of official time to prepare
for the EEO hearing, respond to the agency's request for documentation,
and prepare her appeal to the Commission;
Appellant was the only female in her division occupying a position
description with duty title of "clerk/typist" with AFSC of 3E5 on
MD-authorized engineering position;
Appellant was denied due process when she was told that files identifying
facts from her various prior complaints were never received by the
Commission in the course of her appeals;
Appellant was classified in her civil service career in a way such that
she was prevented from ever achieving a professional position;
Appellant was denied due process when:
after the discipline was removed from appellant's file, the agency
dismissed for "mootness" appellant's allegation concerning discipline she
was issued, thus denying appellant the right to a hearing on the matter
appellant was denied the opportunity to present at a hearing evidence
that showed that she was demoted five weeks prior to acquiring one year
in-grade as a FS-05, rendering her ineligible for higher graded positions
for which she applied;
Appellant was denied equal pay in both her normal wages and overtime
pay when, while on temporary duty, she performed the same duties as
a male GS-11 but was paid only as a GS-4, and was denied overtime and
instead required to take compensatory time;
A) Appellant was denied due process when on March 13, 1997, she was
given notice of an OCI meeting which was to occur on March 17, 1997,
thus denying her sufficient time to prepare for the meeting
The agency falsified official government documents when appellant was
given mediation documents on March 17, 1997, which contained one set
of agency officials' signatures, and was given another signature page
on March 18, 1997, which contained her signature but different agency
officials' signatures; and
The agency falsified official government documents when the Office of
Complaint Investigations removed certain documents from investigative
files which were provided appellant.
On October 10, 1997, the agency issued a final decision accepting
allegations (1) through (3) for investigation. The agency dismissed
allegations (4), (9), and (14), pursuant to EEOC Regulation 29
C.F.R. �1614.107(a), for failure to state a claim; allegations (5),
(12)(B), and (13), pursuant to 29 C.F.R. �1614.107(a), for stating
the same claim that was pending before or decided by the agency or
Commission; allegations (6) and (7), pursuant to 29 C.F.R. �1614.107(b),
for failure to initiate contact with an EEO Counselor in a timely
manner; and allegations (8), (10), (11), and (12)(A), pursuant to 29
C.F.R. �1614.107(c), because these allegations were the bases of civil
actions in a United States District Court.
As a threshold matter, the Commission notes that it is the agency's
burden to substantiate the bases for its final decision. See Marshall
v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991).
In the instant case, we find that the agency's final decision only
marginally met that burden, as it was vague and incomplete. The agency's
identification of the issues was not always clear, and, except for two
of the allegations, failed to include the dates on which the incidents
of alleged discrimination occurred. Moreover, the agency's analysis
supporting the dismissal of the eleven allegations lacked clarity and
failed to provide sufficient support. Notwithstanding the agency's
omissions, the Commission, to the extent possible, will determine the
propriety of the agency's dismissals.
Failure to State A Claim
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim. An agency shall accept a
complaint from any aggrieved employee or applicant for employment who
believes that he or she has been discriminated against by that agency
because of race, color, religion, sex, national origin, age, or disabling
condition. 29 C.F.R. �1614.103; �1614.106(a). The Commission's federal
sector case precedent has long defined an "aggrieved employee" as one
who suffers a present harm or loss with respect to a term, condition, or
privilege of employment for which there is a remedy. Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
The incidents identified in allegations (4), (5), (6), (9), (13), and
(14) all concern alleged improprieties in the agency's processing
of prior EEO complaints appellant filed. Specifically, appellant
alleged that improper information was posted on EEO bulletin boards,
and that documents were improperly excluded from investigative files.
The Commission has held that allegations which relate to the processing
of previously filed complaints do not state independent allegations
of employment discrimination. See Kleinman v. U.S. Postal Service,
EEOC Appeal No. 05940579 (September 22, 1994); Story v. U.S. Postal
Service, EEOC Appeal No. 01965883 (March 13, 1997). If a complainant
is dissatisfied with the processing of pending complaints, she should
be referred to the agency official responsible for the quality of
complaints processing. Agency officials should earnestly attempt
to resolve dissatisfaction with the complaints process as early and
expeditiously as possible. EEOC Equal Employment Opportunity Management
Directive for 29 C.F.R. �1614, chap.4, pages 8 and 9 (October 1992).
Consequently, the agency properly dismissed allegations (4), (5), (6),
(9), (13), and (14) pursuant to 29 C.F.R. �1614.107(a).<1>
Untimeliness
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. The Commission has adopted a "reasonable suspicion" standard
(as opposed to a "supportive facts" standard) to determine when the
forty-five (45) day limitation period is triggered. See Ball v. USPS,
EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
The agency dismissed allegation (7) on the grounds that appellant did not
contact an EEO Counselor in a timely manner. However, the agency failed
to include in its analysis the date on which appellant was authorized
only four hours of official time to prepare for her EEO complaint, and the
date on which appellant initiated contact with an EEO Counselor. As the
agency failed to provide the information required to substantiate its
decision to dismiss allegation (7), we find that dismissal was improper.
Bases of Civil Actions
EEOC Regulation 29 C.F.R. �1614.107(c) allows for the dismissal of a
complaint that is pending in a United States District Court in which the
complainant is a party. The purpose of this provision of the regulations
is to avoid duplicative investigation of identical complaints by two
different fact-finding bodies. The agency dismissed allegations (8),
(10), (11), and (12)(A) on the grounds that these allegations were
the bases of civil actions appellant filed on September 11, 1991,
and March 31, 1997, in the U.S. District Court, Eastern District of
Arkansas, Western Division, identified as LR-C-91-77 and LR-C-95-815,
respectively. A review of the record reveals that these allegations were
raised during the referenced civil actions appellant filed. Therefore,
it is inappropriate for appellant to now attempt to re-litigate these
matters using the administrative EEO process. Accordingly, the agency
properly dismissed these allegation pursuant to 29 C.F.R. �1614.107(c).
Same Claim Pending Before or Decided by the Agency or Commission
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
In the instant case, the agency maintained that appellant raised the
matter identified in allegation (12)(B), i.e., that she was denied
overtime pay on the basis of her sex, in prior EEO complaints she filed,
identified as EEOC Appeal Nos. 01974015, 01975378, and 01976334. However,
the agency failed to include copies of these complaints, or any other
evidence supporting its conclusion. As the agency failed to substantiate
this basis for dismissal, we find that its decision to dismiss allegation
(12)(B) was in error.
CONCLUSION
Accordingly, the agency's final decision dismissing allegations (4), (5),
(6), (8), (9), (10), (11), (12)(A), (13), and (14) is AFFIRMED for the
reasons set forth herein. The agency's decision to dismiss allegations
(7) and (12)(B) is hereby REVERSED. Those allegations are REMANDED to
the agency for further processing in accordance with this decision and
the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
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. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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. 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 (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:
Oct. 23, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations1Since we are affirming the agency's
dismissal of allegations (5), (6), and (13) on the grounds
of failure to state a claim, we will not address the agency's
alternative grounds for dismissal, i.e., that allegation (5) stated
the same claim appellant raised in EEOC Appeal No. 01975378; that
allegation (6) was untimely; and that both parts of allegation
(13) stated the same claims appellant raised in EEOC Appeal
Nos. 01974015 and 01976334.