01A02427
07-26-2000
Carol A. Carpenter, Complainant, v. Bill Richardson, Secretary, Department of Energy, Agency.
Carol A. Carpenter v. Department of Energy
01A02427
July 26, 2000
.
Carol A. Carpenter,
Complainant,
v.
Bill Richardson,
Secretary,
Department of Energy,
Agency.
Appeal No. 01A02427
Agency No. 2010 WAPA
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision pertaining to 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
The Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified at 29 C.F.R. �1614.405).
Complainant contacted the EEO office regarding claims of discrimination
based on age, religion, and retaliation. Informal efforts to resolve
complainant's concerns were unsuccessful. On October 26, 1999,
complainant filed a formal complaint. In its decision, the agency framed
complainant's claims as follows:
1) Complainant was subjected to discrimination based on age and/or
religion when she received a failing mid-year performance evaluation and
was placed on a Performance Improvement Plan (PIP) on April 9, 1999.
Complainant alleges this was done �...as a vehicle to get you out of
Western...� Complainant failed the final PIP evaluation based
on her failure to perform satisfactorily in three of the five elements,
and was subsequently
issued a Notice of Proposed Removal on August 17, 1999.
2) Complainant was subjected to discrimination based on age and/or
religion when her supervisor withheld her within-grade increase and would
not consider her for promotion to the GS-09 grade level sometime during
the April-August 1999 timeframe.
3) Complainant was subjected to retaliation when the supervisor withheld
her within-grade increase, would not consider her for the GS-09 grade
level promotion, placed her on a PIP, failed her in the PIP, and issued
a Notice of Proposed Removal.
In its January 31, 2000 decision, the agency dismissed the complaint on
the grounds that complainant had raised the matters in a negotiated
grievance procedure that permits allegations of discrimination.
The agency determined that six grievances filed by complainant between
July 9, 1999 and August 17, 1999 were �directly on point to the instant
complaint....� The decision noted that each of the six grievances
concerned a particular performance evaluation. According to the agency,
in both the grievances and the EEO complaint, complainant claims that
she was being harassed by her supervisor with the intent that complainant
would resign. The agency further determined that �[b]eing placed on the
PIP led to the withholding of the within-grade increase, the non-promotion
to the GS-9 grade level and then, the failed individual elements of the
PIP. These failed elements led to the final failed PIP evaluation and then
to the Notice of Proposed Removal.� Therefore, the agency concluded that
the issues and remedies raised in the EEO complaint �relate directly
to the issues and remedies [in the] grievances....� The agency
determined that because the complaint was filed after the grievances,
complainant is deemed to have selected the grievance process. Moreover,
regarding claim 3, the agency determined that since complainant alleged
retaliation based on her age and religion, and she had not participated in
a protected activity, she did not have a cognizable claim of retaliation.
Complainant presents no new contentions on appeal, but reiterates the
merits of her claims.
The regulation set forth at 64 Fed. Reg. 37,644, 37,659 (1999) (to
be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.301(a)) states that when a person is employed by an agency subject to
5 U.S.C. � 7121(d) and is covered by a collective bargaining agreement
that permits claims of discrimination to be raised in a negotiated
grievance procedure, a person wishing to file a complaint or grievance
on a matter of alleged employment discrimination must elect to raise the
matter under either part 1614 or the negotiated grievance procedure,
but not both. An aggrieved employee who files a grievance with an
agency whose negotiated agreement permits the acceptance of grievances
which allege discrimination may not thereafter file a complaint on the
same matter under this part 1614 irrespective of whether the agency has
informed the individual of the need to elect or whether the grievance
has raised an issue of discrimination.
A review of the record reflects that complainant has filed numerous
grievances regarding weekly evaluations of her PIP, a Notice of Reprimand,
and compensation for time spent on a phone call. We note that although
some of the grievances raise claims of harassment by complainant's
supervisor and request remedies similar to those presented in the
EEO complaint, we nevertheless determine that the grievances do not
concern the �same matters� as those raised in the instant complaint.
In her complaint, complainant contends she suffered discrimination when
she failed the final PIP, was issued a Notice of Proposed Removal,
was not given a within grade increase, and was not considered for a
GS-09 promotion.
In addition, the record does not contain a copy of the negotiated
agreement. Therefore, we are unable to determine whether the negotiated
grievance procedure permits claims of discrimination. Clearly, it
is the burden of the agency to have evidence or proof to support its
final decision. See Marshall v. Department of the Navy, EEOC Request
No. 05910685 (Sept. 6, 1991). The agency's dismissal of claims 1 and
2 is not supported by the record and is improper.
Finally, the agency also dismissed complainant's basis of reprisal,
included in claim 3, on the grounds that complainant did not participate
in protected EEO activity. We note that while claim 3 is the only
portion of the complaint which includes the basis of reprisal, the
underlying issues in claim 3 are merely repetitive of the matters set
forth in claims 1 and 2. A review of the record reveals that reprisal
was not discussed with the Counselor. Further, on appeal, complainant
states that she is appealing the decision �to dismiss my claims of
discrimination based on age and religion....� In both her complaint and
on appeal, complainant asserts that �[her supervisor] hated me because
of my age and religion and was discriminating and retaliating against me
for these and other reasons.� There is no indication in the record that
complainant participated in EEO activity. Moreover, it does not appear
that complainant believes she was discriminated against on such basis.
Therefore, we find that the agency's dismissal of the reprisal basis
(claim 3) was proper.
Accordingly, the agency's decision to dismiss the basis of reprisal
(claim 3) was proper and is hereby AFFIRMED. The agency's decision to
dismiss claims 1 and 2 was improper and is hereby REVERSED. Claims 1
and 2 are REMANDED to the agency for further processing in accordance
with this decision and the Order below.
ORDER (E0400)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)
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, Acting Director
Office of Federal Operations
July 26, 2000
__________________
Date
1On 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.