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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0520070728