Dorothy L. Smith, Complainant,v.Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionNov 22, 2004
01a44713 (E.E.O.C. Nov. 22, 2004)

01a44713

11-22-2004

Dorothy L. Smith, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.


Dorothy L. Smith v. Department of Health and Human Services

01A44713

November 22, 2004

.

Dorothy L. Smith,

Complainant,

v.

Tommy G. Thompson,

Secretary,

Department of Health and Human Services,

Agency.

Appeal No. 01A44713

Agency No. CIT-EEO-2004-0002

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision dated June 14, 2004, dismissing her formal complaint of

unlawful employment discrimination, brought pursuant to 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. The Commission accepts the appeal.

See 29 C.F.R. � 1614.405.

On May 4, 2004, complainant filed a formal complaint claiming

discrimination on the bases of race and age.

In its June 14, 2004 final decision, the agency determined that

complainant's complaint was comprised exclusively of the following claim:

Whether complainant was discriminated against when, on March 23, 2004,

she learned that her position and assigned duties performed as a Computer

Assistant in the Training Section of the Support Services Branch,

Division of Customer Support, were designated for possible outsourcing

pursuant to the "A-76" review?

The agency dismissed the complaint on the grounds that the action

identified by complainant was merely a proposal to take a personnel

action. The instant appeal followed.

The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides, in part,

that the agency shall dismiss a complaint that alleges that a proposal to

take a personnel action, or other preliminary step to taking a personnel

action, is discriminatory.

Based on a fair reading of the record, including the EEO Counselor's

Report and complainant's formal complaint statement, we find that the

agency improperly framed and improperly dismissed complainant's complaint.

Here, we find that complainant stated that she worked in the Training

Section for more than six years. Complainant further stated, that

for the two and one-half years prior to March 2004, when she came

under the supervision of a named management official (MO), she was

asked to perform receptionist duties on a back-up basis, a duty she

shared with a co-worker in the Training Section. However, complainant

claimed that MO relieved the co-worker of receptionist duties, but that

over time, MO significantly increased complainant's receptionist duties.

Complainant claimed that because MO requires her to spend so much of her

time performing receptionist duties, she usually performs her Training

Section duties while acting as the receptionist. Complainant claimed

that she was never informed that these receptionist duties would result

in her position being re-classified as a "Help Desk" worker, in a division

other than the Training Section, and that she only learned this in March

2004, when she was told that her position fell under the "A-76" review.

Complainant claimed that none of the positions in the Training Section

are at risk for outsourcing under this review, and that MO deliberately

assigned her alone all of the receptionist duties knowing that it would

place her out of the Training Section and put her position at risk for

outsourcing. Complainant claimed that she was not informed that working

so much as a receptionist would change her position classification, and

stated that she should be classified as working in the Training Section,

and not the Help Desk Section.

Based on complainant's statements, as set forth above, we find that her

claim is more properly construed as an improper assignment of duties and

change in the classification of her position. We find that complainant

timely raised this matter with the EEO Counselor on March 23, 2004,

because she only learned of the change of her position classification on

that date. See 29 C.F.R. � 1614.105(a)(1). We also find that this

matter states a cognizable claim. See Diaz v. Department of the Air

Force, EEOC Request No. 05931049 (April 21, 1994).

Accordingly, for the reasons set forth above, we find that the agency

improperly framed and improperly dismissed complainant's complaint.

Therefore, we REVERSE the agency's dismissal and we REMAND the complaint

as defined herein to the agency for further processing.<1>

ORDER (E0900)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. 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 (K0501)

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)

(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 (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 (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

November 22, 2004

__________________

Date

1Commission records reflect that complaint

filed a second "appeal," concerning the agency's July 16, 2004 letter

in which it refused to amend the captioned complaint with complainant's

claim that the agency improperly processed the captioned complaint when

it dismissed it. We note that the agency advised complaint to raise

this matter in conjunction with her appeal on the captioned complaint.

We do not address it further herein in light of our decision to reverse

the agency's dismissal of the captioned complaint.