Lori A. Salazar, Appellant,v.Bill Richardson, Secretary, Department of Energy, Agency.

Equal Employment Opportunity CommissionNov 4, 1998
01975183 (E.E.O.C. Nov. 4, 1998)

01975183

11-04-1998

Lori A. Salazar, Appellant, v. Bill Richardson, Secretary, Department of Energy, Agency.


Lori A. Salazar, )

Appellant, )

) Appeal Nos. 01975183

) 01975184

v. ) Agency Nos. 97-124-AL

) 97-125-AL

) 97-133-AL

Bill Richardson, )

Secretary, )

Department of Energy, )

Agency. )

______________________________)

DECISION

On June 19, 1997, appellant filed an appeal with this Commission

pertaining to her complaints 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., and �501 of the Rehabilitation Act of 1973,

as amended, 29 U.S.C. �791 et seq.

On March 10, 1997, appellant sought counseling concerning her complaints.

Informal efforts to resolve her concerns were unsuccessful. Twice on

April 25, 1997 and once on May 16, 1997, appellant filed formal complaints

alleging that she was subjected to discrimination on the bases of race

(Hispanic), national origin (Hispanic), mental disability (paranoia, Post

Traumatic Stress Disorder (actual and/or perceived)), and in reprisal

for prior EEO activity when:

On March 4, 1997, appellant was not selected for the Management Assistant

("MA") position vacancy in the Human Resources ("HR") Division;

On March 4, 1997, appellant was not selected for the Assistant Manager's

Secretary ("AMS1") position vacancy in the Office of Energy, Science,

and Technology ("OEST"); and

On March 5, 1997, appellant was not selected for the Assistant Manager's

Secretary ("AMS2") position vacancy in the Office of Management and

Administration ("OMA");

Further, in each of appellant's formal complaints she alleged that

the instant non-selections were not isolated incidents, but rather

were part of an ongoing series of related actions that denied her

advancement opportunities. Specifically, appellant alleged that since

1993, she was denied approximately twenty (20) positions for which she

applied. Appellant asserted that the agency maintained a discriminatory

selection/promotion process that enabled people outside her protected

class and with less qualifications to be promoted to the positions she

sought ("selection/promotion process claim").

By two letters dated May 21, 1997, and a third dated June 12,

1997, the agency notified appellant that allegations (1) through

(3) were being accepted for investigation. None of the letters

addressed the selection/promotion process claim. As a result, on

June 17, 1997, appellant's attorney sent a letter requesting that

the agency notify appellant of its acceptance and/or dismissal of the

selection/promotion process claim. In case the agency's failure to

address the selection/promotion process claim was deemed dismissal of

the matter, on June 19, 1997, appellant's attorney sent the Commission

notice of appeal of that decision.

On July 11, 1997, the agency issued a consolidated final decision

("FAD") addressing appellant's allegations. The FAD accepted only

allegation (3) for investigation, and, after identifying sixteen (16)

positions appellant sought between July 1993, and May 1996, dismissed

the selection/promotion process claim for untimely EEO Counselor contact.

Specifically, the agency determined that appellant's initial EEO Counselor

contact occurred more than forty-five (45) days from the dates on which

she was not selected, and was, therefore, untimely. The agency further

determined that appellant failed to establish a continuing violation

because the individual non-selections were specific, discrete incidents

which should have triggered appellant's awareness and duty to exercise

her EEO rights. Also, the agency found that each vacancy existed in

different employing offices, and, therefore, equated to employment

decisions made by different selecting officials. Finally, the agency

determined that appellant raised the identical allegation in a prior case

she filed (Agency No. 97-101-AL), which was dismissed by letter dated

May 6, 1997. Accordingly, in the alternative, the agency dismissed the

selection/promotion process claim pursuant to 29 C.F.R. �1614.107(a),

for stating claims that were previously decided by the agency. The FAD

did not address allegations (1) or (2).

The Commission notes that the FAD did not specifically address allegations

(1) and (2). However, the record contains two letters dated May 21,

1997, in which the agency accepted these allegations for investigation.

As there is no evidence suggesting that the agency rescinded its

acceptance of these allegations, the Commission assumes that they will

be processed in conjunction with allegation (3).

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, as the record reveals that appellant

raised the selection/promotion process claim in a prior complaint,

identified as Agency No. 97-101-AL. It is inappropriate to attempt

to re-litigate that matter in the instant complaint. Consequently,

dismissal of the selection/promotion process claim was proper pursuant

to 29 C.F.R. �1614.107(a).<1>

Accordingly, the agency's decision to dismiss the selection/promotion

process claim was proper and is AFFIRMED for the reasons set forth herein.

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 (S0993)

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:

Nov. 4, 1998

____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations1Since we are affirming the agency's

dismissal of the selection/promotion process claim on the grounds

that it states the same claim that was pending before or decided

by the agency or Commission, we will not address the agency's

alternative grounds for dismissal, i.e., that it was untimely.