01a03768
02-08-2001
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
01A03768
February 8, 2001
.
Dorothy T. Pleasant,
Complainant,
v.
Mel R. Martinez,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01A03768
Agency No. FW-94-19
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated March 23, 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 (Black), religion (Catholic), sex (female), age
(50), disability (bad back and poor eyesight), and in reprisal for prior
EEO activity when:
From 1987 to February 16,1994, (date of complainant's formal complaint),
management denied complainant a proper rating of �outstanding,� while
lighter skinned black females who were not disabled received such
ratings.<1>
In a March 23, 2000 decision the agency dismissed a portion of this claim
pursuant to the regulation set forth at 29 C.F.R. � 1614,107(a)(1), for
stating the same claim which was the subject of an earlier EEO complaint.
Specifically, the agency stated that complainant raised the same claim
in cases FW-89-09 and FW-90-19B. The agency noted that in these two
previous complaints, complainant alleged that she should have received
an outstanding rating for the 1987-1988 and 1988-1989 appraisal periods
respectively.
The agency dismissed the remainder of complainant's present claim which
concerned her ratings from 1989 to 1994, pursuant to the regulation set
forth at 29 C.F.R. � 1614.107(a)(9), for abuse of process. Specifically,
the agency stated that since 1989, the agency has acknowledged and
approved complainant's use of 100% of her time for union related
activities. The agency stated that based on complainant's union status
she cannot receive higher than a fully successful rating and argued that
since complainant knew her rating was based on her union status and not
on her race, color, sex, age, disability, or reprisal, she misused the
EEO process.
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.
After a review of the record and the Commission's previous decision in
Pleasant v. Department of Housing and Urban Development, EEOC Appeal
No. 01940819 (November 7, 1994), we find that the agency properly
dismissed the issues involving the 1987-1988 and 1988-1989 performance
appraisals. We find that in Agency Case No. FW-89-09, complainant
alleged that she should have received an outstanding instead of a fully
successful on her 1987-1988 performance appraisal. In addition, in Agency
Case No. FW-90-19B, complainant alleged that she should have received
an outstanding on her 1988-1989 performance appraisal. Thus, since
complainant already challenged the 1987-1988 and 1988-1989 appraisals,
she cannot challenge them again in the present case.
With regard to the remaining appraisals, we find that the agency
improperly dismissed these issues on the grounds of abuse of process.
The agency argues that complainant cannot receive a rating of higher that
fully successful based on her union status. The Commission finds that the
agency's argument improperly addresses the merits of complainant's claim.
Thus, we find that the agency's dismissal of the appraisals from 1989
to 1994 was improper.
Accordingly, we AFFIRM the agency's decision to dismiss the issues
involving the 1987-1988 and 1988-1989 appraisals. We REVERSE the
agency's decision dismissing the issues of the appraisals from 1989 to
1994 and REMAND these issues for further processing in accordance with
the Order below.
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 (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 (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
February 8, 2001
__________________
Date
1The record reveals that this issue was the subject of a previous
Commission decision in Pleasant v. Department of Housing and Urban
Development, EEOC Appeal No. 01973904 (June 21, 1999). In that
decision, the Commission remanded the above issue to the agency and
ordered a supplemental investigation to determine whether this issue
was previously raised by complainant in another EEO complaint.