01a00103
03-23-2001
Angela S. Lehr, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Angela S. Lehr v. Department of the Army
01A00103
03-23-01
.
Angela S. Lehr,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A00103
Agency No. BPDQFO9908J0090
DECISION
Complainant filed an appeal with this Commission from a final agency
decision (FAD) dated August 30, 1999, concerning her complaint of
unlawful employment discrimination in violation of Title VII of Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. � 621
et seq. The appeal was postmarked October 1, 1999. Accordingly, the
appeal is timely pursuant to 29 C.F.R. � 1614.402(a), and is accepted
in accordance with 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(5) when
complainant alleged that a proposed personnel action was discriminatory.
BACKGROUND
On July 27, 1999, complainant filed a formal complaint alleging that
she was being discriminated against because of her age (62) and sex
(female) when certain job duties and responsibilities were removed
from her control. Complainant believe that this constituted an adverse
personnel action on the party of the agency.
The agency FAD dismissed the complainant's complaint for alleging that
a proposed personnel action was discriminatory. Specifically, the FAD
indicated that the complainant was informed of a proposed personnel
action to take place in the near future, without an effective date for
the action. Further, the FAD indicated that complainant's most recent
job description confirms that her duties still reflect involvement with
the Veteran's Survey Project.
ANALYSIS AND FINDINGS
EEOC Regulations 29 C.F.R. � 1614.107(a)(5) provides, in part, that the
agency shall dismiss a complaint that alleges that a proposal to take
a personnel action, or other preliminary step to taking a personnel
action, is discriminatory. However, the Commission had held that when
a complaint is filed on a proposed action and the agency subsequently
proceeds with the action, the action is considered to have merged with
the proposal. See Siegel v. Department of Veterans Affairs, EEOC Request
No. 05960568 (October 10, 1997); Charles v. Department of the Treasury,
EEOC Request No. 05910190 (February 25, 1991).
The agency argues that the claims raised in complainant's complaint
address a proposed personnel action. In support of its position, the
agency indicated that on February 15, 1999, the Responsible Official
(RO) drafted a memo to complainant indicating that, on March 29, 1999,
she would be reassigned to the Collections and Acquisitions Branch
and that her role as primary point of contact for veterans would end
in the near future. The memo indicated that complainant's role would
be adjusted over several months to receiving, documenting, sorting and
dispersing veteran survey donations and preparing appropriate letters.
We find that the proposed changes to complainant's duties merged with the
actual changes that complainant alleged took place in June and July 1999.
Specifically, complainant indicated she could no longer give tours unless
specifically requested to do so. On July 1, 1999, she was told that she
could no longer sign letters going out to veterans. Finally, on July 8,
1999, she was ordered to turn over all flyers and surveys in her office.
These changes are in keeping with the changes that the RO proposed
for complainant's realigned position in his February 15, 1999 memo.
When complainant filed her complaint in July 1999, after her phone number
was changed and she was told that she could no longer contact veterans,
her claim no longer concerned a proposed personnel action, but an actual
agency action. Therefore, the agency's decision to dismiss was improper.
CONCLUSION
The agency's decision to dismiss complainant's complaint was improper
and is REVERSED. The complaint is 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 (K0900)
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)(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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (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
_03-23-01_________________
Date