01A34417
06-16-2004
Della D. Black, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.
Della D. Black v. Department of Homeland Security
01A34417
June 16, 2004
.
Della D. Black,
Complainant,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A34417
Agency No. I-03-E016
Hearing No. 230-A3-4064X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final order.
The record reveals that on August 11, 2002, complainant, a former
Supervisory Deportation Officer, GS-1801-13, Detroit District, filed
a formal EEO complaint alleging discrimination based on race and sex.
The action complained of occurred on April 11, 2002, and pertained to
testimony given by an agency official in United States District Court
on an earlier EEO complaint filed by complainant.
On February 24, 2003, complainant requested a hearing before an EEOC
Administrative Judge (AJ), stating that more than 180 days had elapsed
since she filed a formal EEO complaint on August 11, 2002. The AJ
assigned to the case advised the agency of complainant's hearing request
and ordered the agency to produce the complaint file.
Subsequently, however, the AJ concluded that the EEOC did not have
jurisdiction over the complaint, and dismissed the case. The AJ noted,
inter alia, that the complaint had raised the same claim raised in a prior
complaint, and was the subject of a civil action then on appeal to the
Sixth Circuit. The agency's final order implemented the AJ's decision.
On appeal, complainant argues that, contrary to the findings of the
AJ, the claim in the complaint at bar � that the agency discriminated
against her when she was referred for EAP evaluation � was not the
same claim raised in her prior EEO complaints and civil action, which
involved an interim performance rating and a performance improvement
plan (PIP) (Agency No. I-99-E049), and a detail assignment (I-99-E091).
Complainant also noted that she had not filed an EEO complaint with regard
to the termination of her employment. The agency argues that the AJ's
decision was correct, and requests that its final order be affirmed.
Upon review of the record, the Commission concludes that the AJ correctly
dismissed the complaint at bar. The contested EAP referral was part of
the events detailed in Agency No. I-99-049, relating to complainant's
performance rating and PIP, which contributed to her eventual removal.
Further, contrary to complainant's assertion, Agency No. I-99-091
included her termination as well as the detail. The record reflects
that complainant was removed from employment, and was detailed to a
non-supervisory position pending the effective date of her removal.
The final agency decision relevant to that complaint adjudicated both
the detail and the removal. The claim raised in the complaint at bar
therefore states the same claim as complainant's earlier EEO complaints,
which have since been the subject of a civil action. The instant
complaint therefore was properly dismissed pursuant to 29 C.F.R. ��
1614.107(a)(1) and 1614.107(a)(3).<1>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 16, 2004
__________________
Date
1The AJ also found that the complaint should be dismissed pursuant to 29
C.F.R. � 1614.107(a)(8) because it raised dissatisfaction with the EEO
process. Although complainant indicated that there were inaccuracies
in the EEO counseling report, the focus of her complaint was the EAP
referral.