01A10307_r
07-25-2002
Dorothy T. Pleasant, Complainant, v. Mel R. Martinez, Secretary, Department of Housing and Urban Development, Agency.
Dorothy T. Pleasant v. Department of Housing and Urban Development
01A10307
July 25, 2002
.
Dorothy T. Pleasant,
Complainant,
v.
Mel R. Martinez,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01A10307
Agency No. FW-00-05
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated September 6, 2000, 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.,
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
In her complaint, complainant alleged that she was subjected to
discrimination on the bases of race, sex, religion, age, disability
and in reprisal for prior EEO activity when:
On May 24, 1999, complainant received a falsified final agency decision
(FAD) listing eleven claims instead of twelve claims;
On August 12, 1999, complainant received a letter from the Director of
the Departmental EEO Division stating, �I have been informed that you
indicate that you didn't receive a copy of [an] �Attachment A' of the
FAD [for a final agency decision dated May 24, 1999, addressing twelve
complaints that complainant had filed]; therefore, I am providing you
with another copy;�
On September 21, 1999 and ongoing, the agency refused to provide
complainant with requested reasonable accommodations of a copy machine,
scanner, and fire-proof file cabinets in the Union Office;
Since July 15, 1999, the agency refused to provide complainant with
computer equipment that functions properly;
On September 21, 1999, complainant discovered that her 1996 settlement
agreement promoting her from a GS-05 clerk to a GS-09/11 housing
management specialist had been removed from her file without her knowledge
or consent;
In September 1999, the agency denied complainant access to all Employee
Service Center files and records regarding complainant;
In September 1999, the agency failed and refused to maintain her official
personnel folder in accordance with federal law, rules, and Office of
Personnel Management regulations;
The agency refused to timely correct her SF-50 and personnel record
to indicate that she was a Public Housing Revitalization Specialist,
not a Fnancial Analyst;
On October 8, 1999, the agency refused to repay and restore complainant's
leave for a five-day suspension and AWOL charges from October 31, 1996
to November 5, 1996; and
In October 1999, the agency failed to comply with the Commission's
Compliance Order 069991463 concerning Agency No. FW-94-19/Appeal
No. 01973904.
In its final decision, the agency dismissed complainant's complaint.
The agency dismissed claim 1 on the grounds that complainant alleged
dissatisfaction with the processing of a previously filed complaint;
claim 2 on the grounds that complainant alleged dissatisfaction with the
processing of a previously filed complaint and stated the same claim
raised in a prior EEO complaint that is on appeal to the Commission;
claim 3 on the grounds that it stated the same claim raised in previous
EEO complaints (Agency Nos. FW-98-06 and FW-98-17); claim 4 on the grounds
that it stated the same claim raised in previous EEO complaints (Agency
Nos. FW-93-38, FW-98-06, and FW-98-29); claims 5 - 7 on the grounds that
the claims constituted an abuse of the EEO process; claim 8 on the grounds
that it states the same claim raised in a previous EEO complaint (Agency
No. FW-98-17); claim 9 on the grounds that it involves a matter that
complainant elected to pursue through a negotiated grievance process,
constitutes an abuse of the EEO process, states the same claim as a
previous EEO complaint, and fails to state a claim; and claim 10 on the
grounds that it constitutes an abuse of the EEO process because the same
matter has been appealed to the Commission.
Abuse of Process
The Commission rejects the agency's determination that claims 5, 6, 7,
9, and 10, should be dismissed as abuse of process. EEO Regulations
provide that an agency shall dismiss a complaint where the agency
finds that the complaint is part of a clear pattern of misuse of the
EEO process for a purpose other than the prevention and elimination
of employment discrimination. 29 C.F.R. � 1614.107(a)(9); See Buren
v. USPS, EEOC Request No. 05850299 (November 18, 1985). Nevertheless,
only on very rare occasions has the Commission found that a particular
complaint constitutes abuse of process, mainly because public policy
favors the preservation of complainants' EEO rights whenever possible.
Love v. Pullman, Inc., 404 U.S. 552 (1972); Wrenn v. EEOC, EEOC Appeal
No. 01932105 (August 19, 1993).
In this matter, the agency determined that the complainant engaged in
abuse of process by filing the instant complaint wherein she raises
frivolous issues that lack specificity and are similar to matters
previously resolved and adjudicated through the EEO and grievance
processes.
However, upon review, the Commission finds insufficient evidence
to conclude that complainant used the EEO process for the purpose of
circumventing administrative processes or overburdening the EEO system.
The Commission notes that while complainant has filed multiple complaints
regarding matters similar to the instant complaint, the majority of
the instant ten claims concern distinct, separate matters, rather
than duplicative claims on the same matters. We therefore determine
that neither the numerosity nor the subject matter of complainant's
complaints evidence a clear intent by complainant to utilize the EEO
process for impermissible purposes. Consequently, the Commission finds
that complainant's complaint does not constitute abuse of process.
Because the agency dismissed claims 5, 6, and 7 exclusively on the
grounds of abuse of process, the agency's decision to dismiss those
claims is REVERSED.
Claims 1, 2 and 10
EEO Regulation 29 C.F.R. � 1614.107(a)(8) provides that the agency shall
dismiss a complaint that alleges dissatisfaction with the processing of
a previously filed complaint.
In claim 1, complainant alleged that she received a falsified final
agency decision for a prior EEO complaint. We determine that this matter
involves complainant's dissatisfaction with the processing of her prior
EEO complaint. Consequently, we find that the agency's dismissal of
claim 1 was proper and is AFFIRMED.
In claim 2, complainant alleged that the agency improperly transmitted
a letter to her indicating that it had previously failed to submit
an attachment to a prior final agency decision regarding twelve
other complaints filed by complainant. We find that this matter also
addresses dissatisfaction of complaint processing of a prior complaint.
The agency's dismissal of this claim was therefore proper and is AFFIRMED.
In claim 10, complainant alleged that the agency failed to comply
with the Commission's compliance order in Pleasant v. Department of
Housing and Urban Development, EEOC Appeal No. 01973904 (June 21, 1999).
Under Management, Directive 110, dissatisfaction with the processing
and adjudication of prior complaints must be raised within the
underlying complaint, not a new complaint. Complainant should petition
the Commission for enforcement of its order and decision instead of
filing this claim in a separate complaint. See 29 C.F.R. � 1614.503(a).
Consequently, we find that the agency's dismissal of claim 10 was proper
and is AFFIRMED.
Claims 3, 4, 8 and 9
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or Commission.
The agency determined that claim 3 stated the same claim alleged in
Agency Nos. FW-98-06 and FW-98-17. In claim 3, complainant alleged that
in 1999, the agency failed to provide her with three requested office
equipment items (copy machine, scanner, cabinet ) on September 21, 1999.
The record reveals that in Agency No. FW-98-17, complainant alleged
that the agency failed to provide her with a copy machine for the union
office in 1998. The record further reveals that in Agency No. FW-98-06,
complainant alleged that management denied her a reasonable accommodation
by not giving her a laser printer and copier. After a thorough review of
the record, the Commission determines that claim 3 is an elaboration of
the matters raised in complainant's previous complaints. The Commission
AFFIRMS the agency's dismissal of claim 3.
The agency determined that claim 4 stated the same claim alleged in
Agency Nos. FW-93-38, FW-98-06, and FW-98-29. In claim 4, complainant
alleged that the agency failed to provide her with functioning computer
equipment. The record reveals that in Agency No. FW-98-06, complainant
alleged that management denied her a reasonable accommodation by not
giving her a laser printer and copier. The record further reveals
that in Agency No. FW-98-29, complainant alleged that the agency failed
to provide her with a Pentium computer. After a thorough review of
the record, the Commission determines that as in the case with claim
3 discussed above, claim 4 is an elaboration of matters alleged in
complainant's previous complaints. The Commission AFFIRMS the agency's
dismissal of claim 4.
The agency determined that claim 8 stated the same claim complainant
previously alleged in Agency No. FW-98-17. In Agency No. FW-98-17,
complainant alleged that the agency failed to change her title from
Housing Management Specialist to Public Housing Revitalization Specialist
to Financial Analyst. In claim 8 of the instant complaint, complainant
alleged that the agency failed to correct her SF-50 and personnel record
to indicate that she was a Public Housing Revitalization Specialist, not
a Financial Analyst. The Commission determines that the matters in the
instant complainant are an elaboration of the matters in complainant's
previous EEO complaint. Therefore, we AFFIRM the agency's dismissal of
claim 8 on the grounds of stating the same claim as a previous EEO claim.
Further, the agency determined that claim 9 stated the same claim
complainant previously alleged in Agency No. FW-99-06. In Agency
No. FW-99-06, complainant alleged that the agency failed to adjust
her leave and repay her for AWOL charges from June 26, 1996 through
November 5, 1996. In claim 9 of the instant complaint, complainant
likewise alleges that the agency refused to repay and restore leave
for charges from October and November 1996. Consequently, we determine
that the agency properly dismissed claim 9 for stating the same claim
as complainant's previous complaint.<1>
Accordingly, the Commission AFFIRMS the agency's dismissals of claims 1,
2, 3, 4, 8, 9, and 10. The Commission REVERSES the agency's dismissals of
claims 5, 6, and 7 and REMANDS these claims to the agency for further
processing consistent with the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claims (claims 5, 6, and 7)
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
July 25, 2002
__________________
Date
1Because we are affirming the agency's
dismissal of claim 9 on the grounds of stating the same claim as a
previous EEO complaint, we will not address the agency's alternative
grounds for dismissal, i.e., that complainant elected to pursue claim 9
through the grievance process and that the matter fails to state a claim.