01a22728
03-24-2003
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
01A22728
March 24, 2003
.
Dorothy T. Pleasant,
Complainant,
v.
Mel R. Martinez,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01A22728
Agency No. FW-99-06
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision, issued on March 14, 2002, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967, as amended (ADEA), 29 U.S.C. �621 et seq.
Complainant contacted the EEO office claiming that she was subjected to
discrimination based on race, sex, age, disability, and in reprisal for
prior protected EEO activity. Informal efforts to resolve complainant's
concerns were unsuccessful. Subsequently, on February 19, 1999,
complainant filed a formal complaint. The agency, in its decision,
framed the claims as follows:
(1) The agency failed to investigate complainant's prior EEO complaints
filed since 1995;
(2) The former Assistant Secretary for Congressional and
Intergovernmental Relations gave false information to complainant's
Congressman. Complainant's Congressman had written to agency officials
inquiring about the processing of complainant's prior complaints;
(3) The agency failed to adjust complainant's leave and the effective
date of her 1998 within-grade, which adversely impacted complainant's
time and attendance leave records, pay and benefits, in reprisal for
winning her Workers' Compensation claims and repayment of part of the
688 hours of Absence Without Leave (AWOL) that complainant was charged;
(4) EEO Investigators denied complainant the opportunity to file a
Rebuttal Affidavit in agency Case No. FW-97-28 in February 1997.
In a final decision dated May 24, 1999, the agency dismissed Agency
No. FW-99-06 and eleven other complaints filed by complainant for abuse
of process, finding that complainant �clearly misused the EEO process
for ends other than which it was designed to accomplish.� On appeal, the
Commission reversed the agency's dismissal of all twelve complaints for
abuse of process and remanded the complaints to the agency for further
processing. Pleasant v. Department of Housing and Urban Development,
EEOC Appeal No. 01995528, et al. (February 2, 2001).
On March 14, 2002, the agency issued another final decision on Agency
No. FW-99-06, which is the subject of the instant appeal. The agency
again dismissed the complaint. Specifically, claims (1), (2), and (4)
were dismissed on the grounds that they alleged dissatisfaction with the
processing of a previously filed complaint. Alternatively, claim (2)
was dismissed for failure to state a claim. Claim (3) was also dismissed
for failure to state a claim. The agency determined that complainant had
alleged discrimination on the basis of reprisal, but that �the activity
for which you claim reprisal was taken was not protected EEO activity.�
The agency also dismissed claim (3) on the alternative ground that it
stated the same claim complainant raised in a prior grievance.
Claims 1, 2, and 4
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. Further, under Management Directive 110,
dissatisfaction with the processing and adjudication of prior complaints
must be raised within the underlying complaint, not a new complaint.
In claim 1, complainant alleged that the agency failed to investigate her
previous EEO complaints; in claim 2, complainant alleged that the agency
gave false information in response to a congressional inquiry about the
processing of her previous EEO complaints; and in claim 4, complainant
alleged that the agency denied her the opportunity to file an affidavit
for a previous complaint. Upon review, we determine that claims 1, 2,
and 4 all involve complainant's dissatisfaction with the processing of
prior EEO complaints. Consequently, we find that the agency properly
dismissed claims 1, 2, and 4.<1>
Claim 3
EEOC Regulation 29 C.F.R. � 1614.301(a) states that when a person is
employed by an agency subject to 5 U.S.C. � 7121(d) and is covered by a
collective bargaining agreement that permits claims of discrimination to
be raised in a negotiated grievance procedure, a person wishing to file a
complaint or grievance on a matter of alleged employment discrimination
must elect to raise the matter under either part 1614 or the negotiated
grievance procedure, but not both. An aggrieved employee who files
a grievance with an agency whose negotiated agreement permits the
acceptance of grievances which allege discrimination may not thereafter
file a complaint on the same matter under this part 1614 irrespective
of whether the agency has informed the individual of the need to elect
or whether the grievance has raised an issue of discrimination.
As noted above, in claim (3), complainant alleged that the agency failed
to adjust her leave and the effective date of her 1998 within-grade
increase, which had an adverse impact on complainant's time and
attendance leave records, pay and benefits, in reprisal for prevailing
in a Workers' Compensation claim and repayment of part of the 688 hours
of AWOL that she was charged. The record reveals that in a grievance
filed September 13, 1996, complainant alleged that the agency subjected
her to verbal AWOL suspensions without due process. In an arbitrator's
decision on the matter, the grievance issues were described as including
a five-day suspension and "continuing enforced verbal AWOL suspension."
While both the EEO complaint and the grievance make reference to AWOL,
we find that the EEO complaint encompasses much more. Complainant raises
not only concerns with her leave records, but also pay and benefits.
Moreover, it appears that complainant's EEO complaint concerns actions
taken by the agency after the AWOL issues raised in her grievance.
We find that the record does not establish that claim (3) addresses
the same matter that was raised in the September 13, 1996 grievance.
Accordingly, the agency's decision to dismiss the complaint, pursuant
to 29 C.F.R. � 1614.107(a)(4), is reversed.
Finally, the Commission finds that the agency improperly dismissed
claim (3) for failure to state a claim. The agency determined that
claim (3) failed to state a claim because complainant alleged that
the agency retaliated against her for filing a Workers' Compensation
claim, a form of reprisal that is not protected by EEO Regulations.
The record reveals that complainant termed the alleged discrimination
in claim (3) as motivated by �reprisals for my winning my workers'
compensation claims;� however, we determine that the record indicates
that complainant also alleged that claim (3) involved discrimination on
bases that are prohibited by EEO Regulations. We note that in letters
dated December 15, 1998 and January 26, 1999, the EEO Counselor attested
that complainant alleged in claim (3) that the agency subjected her to
discrimination on the bases of race/color, age, sex, disability, and in
reprisal for prior EEO activity. Further, the Counselor's Report stated
that claim 3 involved discrimination on the bases of race/color, age, sex,
disability, and reprisal for EEO activity. Moreover, complainant makes
a general assertion in her formal complaint that all of the claims in her
formal complaint involve discrimination on the bases of race/color, sex,
age, disability, and in reprisal for prior EEO activity. Consequently,
we determine that claim (3) states a claim of unlawful discrimination
on the bases of race/color, age, sex, disability and reprisal for prior
EEO activity.
Accordingly, the Commission AFFIRMS the agency's dismissal of claims (1),
(2), and (4). The Commission REVERSES the agency's dismissal of claim (3)
and REMANDS this claim to the agency for further processing in accordance
with the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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
March 24, 2003
__________________
Date
1Because we affirm the agency's dismissal of
claim 2 for the reason stated herein, we find it unnecessary to address
alternative dismissal grounds.