01a00535
02-15-2001
Donna Craghead, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Donna Craghead v. Department of Veterans Affairs
01A00535, 01A05679
February 15, 2001
.
Donna Craghead,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal Nos. 01A00535, 01A05679
Agency No. 984212
DECISION
On November 4, 1999, Donna Craghead (complainant) filed a timely appeal
(EEOC Appeal No. 01A00535) with this Commission from an agency's decision
dated October 8, 1999 (FAD 1), partially 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. FAD 1 indicated that one of complainant's claims was
accepted for investigation. On July 31, 2000, complainant filed a second
timely appeal (EEOC Appeal No. 01A05679) from an agency final decision
dated June 27, 2000 (FAD 2), which addressed the portion of complainant's
complaint that was accepted for investigation in FAD 1. As these appeals
involve the same complaint, they are hereby consolidated.<1> In her
complaint, complainant alleged that she was subjected to discrimination
on the bases of sex (female) and age (46 at relevant time) when, on
October 5, 1998, she was not promoted. Complainant also checked a box
on the formal complaint form labeled �Examination/Test.�
The record reveals that during the relevant time, complainant was employed
as a Supply Technician at the agency's Beckley, West Virginia Medical
Center. Believing she was a victim of discrimination, complainant sought
EEO counseling and subsequently filed a formal complaint on February 25,
1998. On October 8, 1999, the agency dismissed the �Examination/Test�
portion of complainant's complaint, noting that she failed to discuss
this topic with the EEO Counselor. The agency accepted the promotion
issue for investigation.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). The AJ dismissed the complaint, finding
that it failed to state a claim. Specifically, the AJ determined that
complainant was not an aggrieved individual because the position she
sought was never competitively announced, but was simply �created� as
duties accreted to another employee. The AJ found that complainant was
not eligible to receive the accreted duties because she was serving in
another department at the time. The agency accepted the AJ's dismissal.
On appeal, complainant notes, through her representative, that she did
discuss the issues raised in her formal complaint with the EEO Counselor.
Complainant argues that on November 7, 1998, her representative wrote a
letter to the agency's local EEO Officer and complained of discrimination
in the agency's merit promotion program, citing several questionable
practices surrounding the placement of a certain employee (the selectee or
S1) into an Inventory Management position on or around October 5, 1998.
Complainant also refers to a paragraph in the EEO Counselor's report
in which the counselor notes that he discussed with complainant and her
representative the �issues and basis for filing her case.� In response,
the agency asks the appeal of FAD 1 be dismissed as it involves a partial
dismissal and asks that FAD 2 be affirmed.
FINDINGS AND ANALYSIS
After a careful review of the EEO Counselor's Report, the formal
complaint, and other documents submitted by complainant, we find that
complainant's claim is, in essence, that the agency's decision to place
the selectee (S1) in a position which it subsequently labeled �Inventory
Management Specialist� was discriminatory. Complainant alleged that
when her former supervisor (FS) left the agency, FS's position, Inventory
Management Specialist (IMS), was filled by S1, although the agency did not
post the job and did not give anyone an opportunity to apply. It appears
that complainant checked the box marked �Examination/Test� on her formal
complaint form, as well as �Promotion� because she was attempting to
indicate that the entire turn of events surrounding the eventual placement
of S1 into the IMS position was discriminatory�whether it is called a
failure to promote or a failure to employ the appropriate promotional
examinations/testing procedures. A letter sent to the agency's EEO
office by complainant's representative describes complainant's complaint
in this fashion. We therefore find that complainant's entire complaint
was brought to the attention of the EEO Counselor and that no part of
it should have been dismissed.
Moreover, after a careful review of the AJ's decision and the
investigative file, we find that the AJ addressed the merits of
complainant's complaint without a proper investigation as required by the
regulations. It is well-settled that 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). Here, the AJ
essentially determined that complainant was not qualified to fill the IMS
position because it was only available to one who had �accreted� certain
of FS's duties and worked in a certain department. This goes to the
merits of complainant's complaint, and is irrelevant to the procedural
issue of whether she has stated a justiciable claim under Title VII.
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). Complainant alleged that due
to her sex and age she was denied placement into the IMS position and
that the process by which the position was filled was discriminatory.
She therefore stated a claim of discrimination.
Accordingly, after a careful review of the records, we find that the
agency's decisions were improper. The decisions are REVERSED and the
matter REMANDED in accordance with this decision and the ORDER below.
ORDER
The complaint is remanded to the Hearings Unit of the Philadelphia
District EEOC Office for scheduling of a hearing in an expeditious manner.
The agency is directed to submit a copy of the complaint file to the
EEOC Hearings Unit within fifteen (15) calendar days of the date this
decision becomes final. The agency shall provide written notification
to the Compliance Officer at the address set forth below that the
complaint file has been transmitted to the Hearings Unit. Thereafter,
the Administrative Judge shall issue a decision on the complaint in
accordance with 29 C.F.R. � 1614.109 and the agency shall issue a final
action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 19848,
Washington, D.C. 20036. 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)(Supp. V 1993). 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 (M0900)
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
(R0900)
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 (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
February 15, 2001
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at
the Commission's website at www.eeoc.gov. The regulation found at
29 C.F.R. � 1614.107(b) provides that where the agency believes that
some but not all of the claims in a complaint should be dismissed, the
agency shall notify the complainant in writing of its determination,
the rationale for that determination and that those claims will not be
investigated, and shall place a copy of the notice in the investigative
file. Such a determination is not appealable until final action is taken
on the remainder of the complaint. Here, because the partial dismissal
was issued prior to November 9, 1999, complainant filed an appeal.
Had the remainder of the complaint been pending before the agency or an
Administrative Judge, the dismissed portion would have been remanded for
consolidation. However, as the agency has rendered a final decision on
the accepted portion of the complaint, the Commission hereby consolidates
the appeals and addresses the matter as a whole.