01993746
12-28-1999
Natalie Danforth, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Natalie Danforth v. Department of the Army
01993746
December 28, 1999
Natalie Danforth, )
Complainant, )
)
v. ) Appeal No. 01993746
) Agency No. AVEJFO9901J0060
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
On April 9, 1999, the complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by her attorney
on March 15, 1999, 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
In her complaint, the complainant alleged that she was subjected to
discrimination on the bases of sex (female), age (56) and reprisal when:
on December 1, 1998, she discovered that her supervisor had given her a
"3" in the human relations ability criteria on her Army Civilian Career
Evaluation System (ACCES) package, as compared to other areas where he
rated her "4's" and "5's";
on December 16, 1998, she discovered that her senior rater had given
her a "3" in the human relations ability criteria on her ACCES package,
as compared to other areas where she rated her "4's" and "5's"; and
from July 1997 to the present, a hostile work environment existed with
the continual failure of her supervisor to communicate with her on
numerous tasks.
The agency dismissed claims (1) and (2) pursuant to 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.107(a)(1), for failure to state a claim because she did not show
she suffered any harm or loss. The agency dismissed claim (3) pursuant
to 29 C.F.R. � 1614.107(a)(1), because the issue was pending before the
agency in a previous complaint (Case No. AVEJFO9804I0410).
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in relevant part,
that an agency shall dismiss a complaint, or portion thereof, that 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. 64 Fed. Reg. 37,644,
37,655-56 (1999) (to be codified at 29 C.F.R. � 1614.103) and 29 C.F.R. �
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).
In the instant case, the agency dismissed claims (1) and (2) of the
complainant's complaint because she failed to show she was harmed
or that she had incurred any loss due to the "3" rating in the human
relations ability on her ACCES package. The agency further stated that
the complainant did not even allege that she was precluded from being
referred to, or selected for another position because of the ACCES rating.
Therefore, it found that the complainant did not meet the Commission's
long held definition of an "aggrieved employee" because she had shown
no harm or loss with respect to a term, condition, or privilege of
employment.
In Meredith v. U.S. Postal Service, EEOC Request No. 05890714 (September
21, 1989), the Commission held that a fair and unbiased recommendation,
when one is deserving, is in and of itself a term and condition of
employment. Moreover, the fact that the complainant may have been denied
such a recommendation for retaliatory reasons makes her an aggrieved
employee within the scope of the EEOC Regulations. Id. Because the
focus of claims (1) and (2) is an evaluation in an official file, that
is, a file available to personnel other than the personnel responsible
for the challenged act, we find that the agency erred in dismissing these
claims for failure to state a claim. See Jackson v. Central Intelligence
Agency, EEOC Request No. 05931177 (June 23, 1994).
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) 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.
Here, the agency properly dismissed claim (3) of the complainant's
complaint because the record shows that an allegation of continuing
harassment is contained in agency complaint number AVEJFO9804I0410.
The record further shows that this complaint is still pending before
the agency.
Accordingly, we AFFIRM the agency's dismissal of claim (3) of the
complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1) and REMAND
claims (1) and (2) to the agency for further processing from the point
processing ceased at the time her complaint was dismissed.
ORDER (E1092)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-57 (1999) (to be codified at 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 letter of acknowledgment to complainant 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
RIGHT TO FILE A CIVIL ACTION (Q0993)
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. 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:
Dec. 28, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ __________________________
[REVISED AS OF 11/03/99]
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all Federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at WWW.EEOC.GOV.