Ollie M. Darby, Complainant,v.Spencer Abraham, Secretary, Department of Energy, Agency.

Equal Employment Opportunity CommissionOct 8, 2002
01A14954_r (E.E.O.C. Oct. 8, 2002)

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).