01970643
10-23-1998
Penny C. Payne, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Penny C. Payne, )
Appellant, )
)
v. ) Appeal No. 01970643
) Agency No. ACF 022-96
Donna E. Shalala, )
Secretary, )
Department of Health and )
Human Services, )
Agency. )
______________________________)
DECISION
Based on a review of the record, we find that the agency properly
dismissed appellant's complaint, pursuant to EEOC Regulation 29
C.F.R. �1614.107(a), for stating the same claim that was decided by the
agency and the Commission. Appellant alleged that she was subjected to
discrimination on the bases of race (White), sex (female), and age (56)
when, between May 21, 1992, and May 20, 1996:<1>
The agency failed to assign appellant to a Contract Specialist position
as required by the Career Opportunities Training Agreement ("COTA");
The agency failed to provide appellant on-the-job-training as mandated
by the COTA;
The agency failed to allow appellant to work under a fully qualified
Acquisitions Official for training and mentoring as mandated by the COTA;
The agency failed to give appellant an Employee Performance Management
Plan which incorporates the COTA requirements;
The agency failed to implement the COTA which has precluded appellant
from being promoted to the GS-13 level; and
The agency has subjected appellant to harassment which created a hostile
work environment.
The record reveals that appellant filed a complaint containing the
identical allegations on February 28, 1995, from which the agency
dismissed the first five allegations for failure to state a claim and
the sixth for untimeliness. Specifically, the agency determined that
because appellant's COTA had not yet expired, appellant's complaint was
not ripe for consideration. Additionally, the agency found that the only
incidents of alleged harassment identified by appellant occurred more
than forty-five (45) days before she initiated EEO Counselor contact,
therefore making them untimely. Appellant appealed, and on November 8,
1996, the Commission issued a final decision reversing the agency's
dismissal of allegations (1) through (5), and affirming the dismissal
of allegation (6). Payne v. Department of Health and Human Services,
EEOC Appeal No. 01960308 (November 8, 1996).
Prior to receiving the Commission's decision, on September 16, 1996,
appellant filed the instant complaint to preserve her rights should the
Commission affirm the agency's dismissal of her prior complaint based
on ripeness. On September 27, 1996, the agency issued a final decision
dismissing the instant complaint pursuant to 29 C.F.R. �1614.107(a),
for stating the same claim that was (then) pending before the Commission.
On appeal, although appellant has since obtained the Commission's decision
reversing the bulk of the agency's prior final decision, she contends
that the instant complaint is different in that it concerns a time span
beyond that which was contemplated in her prior complaint.
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 record is clear that appellant raised the
identical allegations of discrimination that were the subject of her
prior complaint. Appellant argues only that dismissal was improper
because the present complaint encompassed a time frame beyond that
of her prior complaint. We are not persuaded by this argument.
The allegations of discrimination raised in both complaints concern
generalized allegations that appellant was denied conditions of employment
entitled her under the COTA. As appellant raised no specific incidents
of discrimination which occurred since filing her prior complaint, we
find that the agency correctly dismissed the present complaint pursuant
to 29 C.F.R. �1614.107(a). Accordingly, the agency's final decision
dismissing appellant's complaint is AFFIRMED.
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:
Oct. 23, 1998
____________________________
DATE Ronnie Blumenthal, Director
1The Commission notes that in its final decision the agency
identified the dates of the incidents as occurring between May 21,
1992, and January 8, 1995; however, a review of the record shows
that appellant alleged that she was discriminated against during
the entire period of her COTA, ending on May 20, 1996.