0120103400
10-27-2011
Deborah Hogan, Complainant, v. Martha N. Johnson, Administrator, General Services Administration, Agency.
Deborah Hogan,
Complainant,
v.
Martha N. Johnson,
Administrator,
General Services Administration,
Agency.
Appeal No. 0120103400
Agency No. 1004FASDCH07
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated July 8, 2010, dismissing 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Special Assistant, GS-14, to the Regional Commissioner at the
Agency’s Federal Acquisition Service facility in Atlanta, Georgia.
On March 24, 2010, Complainant filed a formal EEO complaint alleging that
the Agency subjected her to discrimination on the bases of sex (female)1
and age (55). The Agency characterized Complainant’s claims as follows:
1. in November 2009, she was not provided an opportunity to compete for
a GS-15 position in the Regional Commissioner’s office when another
individual was reassigned to the position noncompetitively;
2. in December 2009, her request for a desk audit in order to seek
reclassification of her position to the GS-15 level was not submitted
by management.
On July 8, 2010, the Agency issued a final decision dismissing the
complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state
a claim. The Agency asserted that the individual reassigned to the GS-15
position (Regional Operations Manager) was already a GS-15 so it was a
non-competitive lateral reassignment. As Complainant was not similarly
eligible for a lateral reassignment to the GS-15 position, the Agency
reasoned that she did not suffer any harm or loss with respect to a term,
condition or privilege of employment. The Agency also dismissed claim 2
because Complainant retired from the government. Therefore, the Agency
argued that the matter of a desk audit was now moot and there was no
expectation that the alleged discrimination would recur.
The instant appeal followed. Briefly, Complainant argues that she
has stated a viable claim because her allegation is that by making the
decision not to compete the GS-15 position, the Agency prevented her from
being promoted. Instead, the position was noncompetitively filled with
a younger male employee. Complainant stressed that she alleged that
this was part of an ongoing pattern of discriminating against women in
advancement to the highest graded positions. Complainant also stated
that the Agency’s characterization of her “desk audit” claim was
too simplistic, and failed to acknowledge that it was part of a broader
hostile work environment claim which she asserts culminated in her being
“coerced into retirement.”
ANALYSIS AND FINDINGS
An agency shall accept a complaint from any aggrieved employee
or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. §§
1614.103, .106(a). The Commission's federal sector case precedent has
long defined an "aggrieved employee" as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). When the complainant does not
allege he or she is aggrieved within the meaning of the regulations,
the agency shall dismiss the complaint for failure to state a claim
pursuant to 29 C.F.R. § 1614.107(a)(1).
In her complaint, Complainant alleges she should have been able to
compete for the GS-15 position but was denied the opportunity, and
that this was part of a pattern of discriminating against women in
their advancement to high level positions within the Agency. As such,
she has stated a viable claim of discrimination. The Agency bases its
dismissal decision on its explanation that a male employee was laterally
transferred to the position. Upon review, the Commission finds that the
Agency’s reason for dismissing the complaint addresses the merits of
the claim without a proper investigation as required by the regulations.
We find that the Agency’s articulated reason for the action in dispute,
i.e., that Complainant was not considered for the position because a
male employee was laterally transferred into it goes to the merits of
Complainant’s complaint, and is irrelevant to the procedural issue
of whether she has stated a viable claim under Title VII and the 29
C.F.R. Part 1614 regulations. See Osborne v. Department of the Treasury,
EEOC Request No. 05960111 (July 19, 1996); Lee v. United States Postal
Service, EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United
States Postal Service, EEOC Request No. 05910642 (August 15, 1991).
Additionally, a fair reading of the complaint and related EEO counseling
materials reveal that Complainant has further alleged that she was
subjected to an ongoing hostile work environment, of which the matter of
the desk audit was one example, that eventually led to her constructive
discharge. These claims have not been addressed by the Agency. Until
these claims are resolved, there is little support for the Agency’s
dismissal based on mootness.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is REVERSED. The complaint is hereby REMANDED to the Agency for
further processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims (denied opportunity
to compete for GS-15 position, hostile work environment, constructive
discharge)2 in accordance with 29 C.F.R. § 1614.108 et seq. 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 (K0610)
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 77960, Washington, DC
20013. 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 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) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 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
77960, Washington, DC 20013. 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 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 (R0610)
This is a decision requiring the Agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
October 27, 2011
__________________
Date
1 Complainant also checked “equal pay” on her formal complaint form,
but it is not clear why or if she intended to also allege a violation
of the Equal Pay Act.
2 On remand, the Agency should also clarify Complainant’s possible
EPA claim.
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0120103400
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103400