01a40918_r
03-26-2004
Susan L. Duncan, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Susan L. Duncan v. Department of the Army
01A40918
3/26/04
.
Susan L. Duncan,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A40918
Agency No. ARHQOSA03JAN0065
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated October 22, 2003, dismissing her complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
In her formal complaint dated September 10, 2003, complainant alleged
that she was subjected to discrimination on the basis of sex.
On October 22, 2003, the agency issued a final decision. The agency
determined that complainant's complaint consisted of the following claim:
On October 10, 2002, [complainant] was advised via memorandum that she
was the subject of a Department of Army Inspector General investigation
because of a conclusion and/or allegation that arose in connection with
a finding of discrimination and implementation of corrective action in
the EEO complaint [of a named agency employee].
The agency dismissed complainant's complaint for failure to state a claim,
pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the agency stated
that complainant did not suffer a harm or loss with respect to a term,
condition, or privilege of employment.
On appeal, complainant, through her attorney, asserts that the agency
improperly dismissed her complaint. Complainant states the agency
improperly identified the issues raised in her complaint. Specifically,
complainant states that she was the subject of an Inspector General
(IG) investigation based on a finding of reprisal discrimination in an
EEO complaint; whereas, none of the male management officials who were
involved in the EEO complaint were subjected to investigation by the
IG; and that the IG investigation resulted in the denial of performance
bonuses and cash awards. Complainant also states that she not receive
cash awards in 2001 and 2002. Complainant asserts that she did suffer
a loss because she was denied monetary awards.
A review of the record supports complainant's assertion that her
complaint was improperly identified. The Commission acknowledges that
complainant's formal complaint does not specifically mention complainant
being denied cash awards; however, a review of the EEO Counselor's
Report indicates that complainant raised this matter in conjunction
with the IG investigation, during EEO counseling. Based on a fair
reading of the record in its totality, we determine that complainant's
complaint is comprised of two claims: complainant was the subject of an
IG investigation and complainant was denied cash awards.
EEOC Regulation 29 C.F.R. �1614.107(a) (1) provides for the dismissal
of a complaint which fails to state a claim within the meaning of 29
C.F.R. �1614.103. In order to establish standing initially under 29
C.F.R. �1614.103, a complainant must be either an employee or an applicant
for employment of the agency against which the claims of discrimination
are raised. In addition, the claims must concern an employment policy
or practice which affects the individual in his capacity as an employee
or applicant for employment. 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; �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).
With regard to the claim that complainant was subjected to an
investigation by the IG, the Commission has consistently held that
being the subject of an IG investigation does not render an individual
aggrieved under the EEOC's regulations. See Mattocks v. Department
of the Navy, EEOC Request No. 05950549 (August 29, 1996). The agency
properly determined that this matter failed to state a claim.
However, the remaining claim, regarding complainant being denied monetary
awards and bonuses, addresses a personal loss or harm regarding a term,
condition, or privilege of her employment. The Commission determines
that it states a claim.
Accordingly, the agency's decision dismissing the claim regarding
complainant being the subject of an IG investigation is AFFIRMED.
However, complainant's claim that she was denied monetary awards and
bonuses is REMANDED to the agency for further processing in accordance
with the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claim (denial of monetary
awards and bonuses) in accordance with 29 C.F.R. � 1614.108. The agency
shall acknowledge to the complainant that it has received the remanded
claim 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
3/26/2004
Date