01A14954_r
10-08-2002
Ollie M. Darby, Complainant, v. Spencer Abraham, Secretary, Department of Energy, Agency.
Ollie M. Darby v. Department of Energy
01A14954
October 8, 2002
.
Ollie M. Darby,
Complainant,
v.
Spencer Abraham,
Secretary,
Department of Energy,
Agency.
Appeal No. 01A14954
Agency No. 01(73)OH
DECISION
Complainant appeals the agency's final decision dated July 18, 2001,
dismissing her complaint. In its final decision, the agency framed
9 claims of alleged discrimination from complainant's May 23, 2001
complaint. According to the agency, complainant alleged discrimination on
the bases of race, color, age, and reprisal for prior EEO activity when:
The agency made an offer to settle complainant's discrimination cases
provided complainant retire from federal service;
A Black employee was not provided the opportunity to become Acting
Manager in the absence of the Manager;
The agency knew complainant was being charged with inappropriate annual
leave for attending the BIG [Blacks in Government] conference;
The agency made discriminatory settlement offers and excluded complainant
from receiving awards, training, etc.;
The agency could have resolved one of complainant's EEO cases;
The agency engaged in discriminatory and retaliatory actions;
Complainant was denied managerial opportunities;
Another employee was pre-selected for a Budget Director position; and
Complainant was denied a performance appraisal for fiscal year 2000,
until February 2001.
The agency dismissed claims (1) - (7) for failure to state a claim.
The agency dismissed claim (8), finding complainant raised the same claim
in a prior complaint (agency case number 98(007)OH), and dismissed claim
(9) as moot. On appeal, complainant argues the agency has improperly
framed the claims of her complaint. We concur and find that the agency
improperly framed several of her claims. Upon review of the complaint
and taking into consideration complainant's comments on appeal, we find
complainant's complaint raises the following six claims:
Complainant was denied the opportunity to serve in the GS-15 Acting
Budget Director position;<1>
Complainant was not selected for a GS-15 Budget Director position;
Agency management failed to provide complainant with a timely annual
performance appraisal for FY 2000;
Complainant was denied cash awards;
Complainant was denied job duties of her choice; and
Complainant was ordered to perform duties outside her job description.
Claim (b)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that
is pending before or has been decided by the agency or Commission.
The agency dismissed claim (b) (claim 8 of the agency's decision) on the
grounds that complainant had raised the same claim in a prior complaint
(agency case number 98(007)OH). Complainant appealed the agency's final
decision in case number 98(007)OH and the Commission considered the prior
complaint on appeal. See Darby v. Department of Energy, EEOC Appeal No.
01990011 (November 20, 2001), request for reconsideration denied,
EEOC Request No. 05A20235 (March 6, 2002). The claim raised in agency
case number 98(007)OH alleged that, "Between July 8, 1997 and July 23,
1997, complainant was not selected to act in any of several positions."
We find that claim (b) and the claim raised in agency case number
98(007)OH are not identical. Dismissal of claim (b) (agency claim (8))
is therefore improper.
Claim (c)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint 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. 29 C.F.R. �� 1614.103,
.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).
We find that claim (c), (designated claim (9) in the agency's decision),
does not state a claim in that complainant has not shown any injury
or harm as a result of receiving an untimely performance appraisal for
fiscal year 2000. Dismissal of claim (c) (agency's claim (9)) pursuant
to 29 C.F.R. � 1614.107(a)(1) is therefore proper.
Claims (a), (d), (e) and (f)
Claims (a), (d), (e) and (f), were not address by the agency. To the
extent that claim (d) is a part of claim (4), we find that complainant's
complaint details how she was allegedly denied cash awards for fiscal
years 1997 through 2001. Therefore, we find that claim (d) is not so
broad as to warrant dismissal for failure to state a claim. Because no
reason has been provided by the agency for dismissal of claims (a),
(e), and (f), we reverse the agency's dismissal of these claims.
Accordingly, we AFFIRM the agency's dismissal of claim (c). We REVERSE
the agency's dismissal of the remainder of the complaint. Claims (a),
(b), (d), (e) and (f) as framed herein are REMANDED to the agency for
further processing in accordance with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 (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 (T0900)
This decision affirms the agency's final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (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 8, 2002
__________________
Date
1 On appeal, complainant sets forth a seventh claim alleging that agency
management conspired to prevent her from being selected for the Acting
Budget Director position. We find this is part of claim (a).