Carolyn H. Lucas, Complainant,v.Pete Geren, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionAug 16, 2007
0520070728 (E.E.O.C. Aug. 16, 2007)

0520070728

08-16-2007

Carolyn H. Lucas, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.


Carolyn H. Lucas,

Complainant,

v.

Pete Geren,

Secretary,

Department of the Army,

Agency.

Request No. 0520070728

Appeal No. 0120062656

Hearing No. 130-2002-08238X

Agency No. ANBKFO0103B0150

DENIAL

Complainant timely requested reconsideration of the decision in Carolyn

H. Lucas v. Department of the Army, EEOC Appeal No. 0120062656 (June

8, 2007). EEOC Regulations provide that the Commission may, in its

discretion, grant a request to reconsider any previous Commission decision

where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).

The underlying appeal stemmed from complainant's claim that the agency

failed to comply with a March 17, 2003 EEOC Administrative Judge's (AJ)

decision finding that the agency had unlawfully retaliated against

complainant. In our prior decision we dismissed the appeal on two

grounds. First, with regard to the allegation that the agency failed

to comply with the Order to instate her to the Procurement position and

to provide training to the discriminating official, we found that the

claim was untimely because over two years had lapsed since the issuance

of the agency's Final Order accepting the AJ's decision. We stated that

"complainant ought to have notified the Director of Equal Employment

Opportunity, in writing, within thirty days of when she knew or should

have known of the claimed noncompliance." Lucas v. Dep't of the Army,

EEOC Appeal No. 0120062656 (June 8, 2007). Second, with regard to her

allegation that the agency breached its obligation under the AJ's Order

when it continued to retaliate against her after reinstating her in 2003,

we dismissed the allegation without issuing judgment on the merits because

the Commission had already addressed the issue in an EEOC hearing after

complainant filed an EEO complaint on the matter.

In her Request for Reconsideration, complainant argues that our prior

decision incorrectly interpreted the applicable law. She states that

although the agency "technically complied with the March 17, 2003 AJ

Order" because it had instated her in the GS-14 Procurement Analyst

position, her claim of noncompliance was not untimely because she

"could not have known at the time she entered this new position that

tactics would be used to strip the position of its major/key functions."

Request for Reconsideration at 5. Complainant however concedes that

in July 2004, she suspected something was not right so she raised the

matter to the LTG, but, she explains, that as a new employee who was

still in the process of learning the duties of the position, she did

not know that discrimination was afoot until the time she submitted

her noncompliance complaint. See id. at 5-6. Secondly, complainant

argues that it was error to dismiss her claim of continued retaliation

because such a decision goes against the essence of the AJ's Order that

the agency cease all retaliation. She states that to characterize her

noncompliance claim as a new claim "would place an undue burden on [her]

and nullify the effect of the March 17, 2003 AJ Order." Id. at 6.

Having reviewed the record, we find no error with our prior decision

that merits a reopening of the appeal. Even assuming that complainant's

claim is timely, she concedes that the agency complied with the AJ's

Order in that it instated her in the position of Procurement Analyst.

The fact that complainant believes she is being treated disparately is

a potential new claim. A true claim of noncompliance requires that

the agency not have instated complainant into the position at all.

With regard to complainant's second argument, she is correct to assert

that the AJ instructed the agency to "ensure that complainant is not

subjected to any type or form of retaliation" (AJ Decision at 25);

however, complainant elected to pursue the subsequent retaliation

charges through the formal EEO complaint process. Her actions and our

dismissal of the noncompliance claim have not prejudiced her in any way.

The protections offered under EEO law remain available to her.1 On this

point, we further note that complainant made no error in pursuing this

claim through a new formal complaint. In fact, she acted appropriately.

Any claim of retaliation/discrimination must be fully examined to

determine whether in fact it is unlawful. As a matter of principle,

we cannot simply accept complainant's claims of retaliation on its face

to the detriment of the agency, just as we would not accept any claim

by the agency without a full evaluation.

As such, we find that our interpretation of the material facts and law

is correct and our decision has no substantial impact on agency policy

as complainant argues. We continue to stand behind our prior decision

and find that the arguments complainant presents in her request fail to

give us reason to reconsider the decision. The decision in EEOC Appeal

No. 0120062656 remains the Commission's final decision. There is no

further right of administrative appeal on the decision of the Commission

on this request.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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.

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

August 16, 2007

__________________

Date

1 We note that the merits of the complaint in which complainant alleged

this subsequent retaliation (Agency No. ARSMDC05MAR07246) were evaluated

in an EEOC hearing (Hearing No. 420-2006-00036X). Complainant has since

appealed the matter and it is currently pending before our office as

EEOC Appeal No. 0120064807.

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0520070728

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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