01985791
03-23-2000
Brenda C. Compton-Turner, Complainant, v. Richard W. Riley, Secretary, Department of Education, Agency.
Brenda C. Compton-Turner v. Department of Education
01985791
March 23, 2000
Brenda C. Compton-Turner, )
Complainant, )
)
v. ) Appeal No. 01985791
) Agency No. ED-9804000
Richard W. Riley, )
Secretary, )
Department of Education, )
Agency. )
______________________________)
DECISION
The Commission finds that the June 10, 1998 final agency decision (FAD),
which dismissed Complainant's formal complaint of discrimination on the
basis of untimely EEO counselor contact, was proper pursuant to the
provisions of 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. �1614.107(a)(2)).<1>
Complainant sought EEO counseling on June 18, 1997, alleging that she had
been discriminated against on the bases of race, color, sex and reprisal
for prior EEO activity when: (1) she was denied a training opportunity;
(2) on June 17, 1997, she was issued a proposed letter of reprimand;
and, (3) comments were made on her General Performance Appraisal System
(GPAS) evaluation.
On August 6, 1997, Complainant filed a formal complaint of discrimination
alleging she had been discriminated against on the bases of race, color,
sex and reprisal when:
(1) she was denied a training opportunity;
(2) she was issued a proposed letter of reprimand dated June 17, 1997,
and subsequent memo dated June 20, 1997, attacking her competency and
professionalism; and
(3) on July 25, 1997, she was provided with comments made on her GPAS
rating printed on June 10, 1997, which stated that she had violated
the agency's code of conduct.
By memorandum dated September 10, 1997, Complainant asked to amend her
August 6, 1997 formal complaint by withdrawing claim (3). Complainant
stated that pursuant to the advice of her union representative, she
wished to file a grievance through the negotiated grievance procedure
on the matter raised in claim (3).
On September 9, 1997 (one day before Complainant requested to be
allowed to withdraw claim (3) from her August 6, 1997 formal complaint),
Complainant sought EEO counseling alleging that she had been discriminated
against on the bases of race, color, sex and reprisal when on July 25,
1997, she received a score of "3" on her 1996-97 General Performance
Appraisal. Complainant further alleged that she had been discriminated
against by the comments made on said appraisal. On November 3, 1997,
Complainant filed a formal complaint of discrimination that is the subject
of the instant appeal, regarding the same issue brought to the attention
of the EEO counselor on September 9, 1997. Complainant further alleged
that the score and comments in question were not supported by her conduct
or performance during the rating period.
On June 10, 1998, the agency dismissed the November 3, 1997 formal
complaint on the grounds of untimely EEO counselor contact. The agency
further after finding that Complainant had not only raised this issue
in her August 6, 1997 formal complaint, but had also withdrawn it on
September 10, 1997. The agency further determined that the matter
raised in the instant complaint was previously raised in the complaint
filed on August 6, 1997, as the matter identified as "claim (3)" which is
discussed above. The agency also noted that complainant withdrew claim
(3) from the August 6, 1997 complaint when she decided to pursue this
matter through the grievance process.
On appeal, Complainant contends that her EEO counselor contact was timely.
In response, the agency contends that complainant's EEO Counselor contact
was untimely. The agency further contends that the complaint should also
be dismissed on the grounds of failure to state a claim after finding
that because Complainant obtained a rating of "pass" on her appraisal,
she was not aggrieved under EEOC Regulations.
Volume 64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter
referred to as EEOC Regulation 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 Commission or the agency.
The record shows that the instant complaint raised the issue of
Complainant's 1996-97 General Performance Appraisal. The record further
shows that this issue had already been raised by Complainant in her August
6, 1997 formal complaint. The record also shows that on September 10,
1997, Complainant withdrew this claim, identified as claim (3), from
her August 6, 1997 formal complaint. The Commission has consistently
held that a Complainant may not file a second complaint where she has
previously raised and withdrawn the issue, even where the original issue
was withdrawn during EEO counseling. Williams v. United States Postal
Service, EEOC Request No. 05950696 (December 19, 1996). Accordingly,
the agency's decision to dismiss complainant's complaint was proper and
is AFFIRMED.
Because we affirm the dismissal of the complaint for the reason cited
herein, we find it unnecessary to address the agency's decision to
dismiss the complaint on alternative grounds.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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. 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:
March 23, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.