01a02182
03-01-2000
Daphne E. Brown, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Daphne E. Brown v. Department of Commerce
01A02182
March 1, 2000
Daphne E. Brown, )
Complainant, )
)
v. ) Appeal No. 01A02182
) Agency No. 00-63-00049D
William M. Daley, )
Secretary, )
Department of Commerce, )
Agency. )
______________________________)
DECISION
The instant matter is being processed following the implementation of
a Memorandum of Understanding (MOU) entered into by the agency, the
Bureau of the Census, and the United States Equal Employment Opportunity
Commission.<1> The MOU was entered into in order to process complaints
arising from the 2000 Decennial Census more effectively and efficiently.
Pursuant to the MOU, individuals file their complaints directly with
the Commission. The Commission, through its Washington, D.C. Field
Office, then conducts an early assessment of complaints and neutral
evaluation of cases. The Washington, D.C. Field Office of the Commission
establishes a record of the complaint by obtaining an affidavit from the
complainant and by contacting an agency official to obtain the necessary
information on the complaint. Based on the record established by the
Washington, D.C. Field Office, the Washington, D.C. Field Office will:
(1) notify the agency that the individual has elected not to file a
formal complaint; (2) issue a decision dismissing the complaint and
notify the complainant or his or her right to appeal the decision to
the Office of Federal Operations; (3) conduct settlement negotiations;
or (4) notify the complainant that the complaint has been accepted and
forward the complaint to the agency for further investigation.
In the instant matter the Washington, D.C. Field Office of the Commission
issued a decision dated January 7, 2000, dismissing the instant complaint
for failing to state a claim. In the complaint complainant claimed that
she was discriminated against on the bases of age, race, and sex, when the
agency undermined her management abilities to either force her resignation
or terminate her. Complainant later amended the complaint to allege
that she was subject to retaliation for filing her EEO complaint when
she was terminated. The record shows that by letter dated November 17,
1999, complainant was terminated from her temporary appointment because
of purported deficiencies in her conduct and continued unacceptable
performance. The November 17, 1999 termination letter cited various
incidents that occurred from July 28, 1999 through November 4, 1999.
The termination letter also mentioned that complainant was counseled about
taking certain actions on September 14, 22, and October 18, 1999, but
that complainant later repeated the actions that led to the counseling.
Regarding the claim of age discrimination, the record shows that
complainant's age at the time of the alleged discrimination was less than
40 years. Because complainant's age was less than 40 years, complainant's
claim is not within the purview of the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. and her claim
of age discrimination fails to state a claim. See Short v. Department
of the Air Force, EEOC Request No. 05980343 (Apr. 29, 1999).
Based on the complaint itself and the statements by the complainant
gathered by the EEOC during the EEOC's neutral and independent evaluation
of the complaint, the Commission agrees with the earlier decision finding
that complainant's claim of discrimination is insufficient to state a
claim and is properly dismissed for failing to state a claim pursuant
to 64 Fed. Reg. 37,644, 37656 (to be codified and hereinafter cited as
29 C.F.R. � 1614.107(a)(1)). The Commission agrees with the previous
decision's conclusion that complainant has failed to show that the
incidents at issue were related to her race or sex or were motivated
by retaliation for complainant's prior protected activity. Therefore,
we find that the instant complaint is properly dismissed for failing to
state a claim pursuant to � 1614.107(a)(1).
The Washington, D.C. Field Office's decision dismissing the complaint
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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 1, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________ _________________________
Date Equal Employment Assistant
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.