01a44965
11-29-2004
Henrietta Miller, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Henrietta Miller v. Department of the Army
01A44965
November 29, 2004
.
Henrietta Miller,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A44965
Agency No. ARCEERD04MAY0022
DECISION
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim. In her complaint, complainant alleged that she was
subjected to discrimination on the basis of reprisal for prior EEO
activity when her supervisor told her she would not be promoted and
attempted to detail her out of his branch.
Complainant, an Office Administrative Assistant at the U.S. Army
Research and Development Center in Vicksburg, MS, contacted the
agency's EEO office on March 15, 2004 to initiate the complaint process.
She subsequently filed a formal complaint of discrimination on June
1, 2004. The agency, in its Final Agency Decision (FAD) issued on
June 15, 2004, dismissed the complaint for failure to state a claim.
Complainant appealed the decision on June 20, 2004.
The FAD dismissed the complaint for failure to state a claim because
complainant failed to show that she was aggrieved. The agency found that
she alleged only a comment by her supervisor, not a concrete personnel
action. The agency also found that complainant is not eligible for
a career ladder promotion in her current position. Alternatively, the
agency argued that the complaint was properly dismissed because it states
a claim that has already been decided by the Commission. The agency notes
that, on May 28, 2003, complainant filed an EEO complaint alleging that
her supervisor said she would not be promoted and reminding her that she
had refused a detail in the past. The agency found that this complaint
raised the same claim and should be dismissed pursuant to 29 C.F.R. �
1614.107(a)(1).
On appeal, complainant argues that, following her prior EEO complaint
in 2003, her supervisor has continued to refuse to promote her to a
higher level at her current position, instead attempting to transfer her
or relegate her to undesirable duties. She alleges that he has evaded
her inquiries, given her misinformation, and inordinately pressured her
to take details in different offices that were undesirable and would
not have been beneficial to her career. She also produces documents
to show that, on December 5, 2003, she requested a desk audit seeking
reclassification of her position from the GS-5 to the GS-6 level, and
alleges that her supervisor improperly impeded her request. Finally,
complainant alleges that the agency purposefully abbreviated and misstated
her allegations in the counselor's report.
We find that complainant has successfully stated a claim of discriminatory
non-promotion. First, the agency erroneously cites 29 C.F.R. �
1614.107(a)(1) as grounds for dismissal. The complaint that is the
subject of this appeal alleges a new instance of the agency's failure
to promote complainant that has not been addressed by the Commission.
That the allegation concerns a similar fact pattern as complainant's
prior EEO complaint is not grounds for dismissal under 29 C.F.R. �
1614.107(a)(1).
Secondly, complainant successfully established that she is aggrieved
for the purposes of stating a claim. On November 18, 2003, in deciding
complainant's prior claim, the Commission held that �a complainant not
eligible for a career ladder promotion, but who claims harm from the
agency's failure to promote without reference to competitive promotions,
has failed to state a claim.� Miller v. Department of the Army, EEOC
Appeal No. 01A34506 (November 18, 2003). In Miller the Commission found
that nothing in the record indicated that complainant had applied for
a promotion or requested a desk audit seeking reclassification of her
current position to the GS-6 level. Id. Since her earlier appeal,
complainant has requested a desk audit and alleges that her supervisor
deviated from established procedure in order to prevent it from taking
place. She requested the desk audit in accordance with her union's
collective bargaining agreement. If the desk audit were conducted
and complainant's current position reclassified, complainant would be
eligible for a promotion in her current position. Because circumstances
have changed and complainant alleges these additional facts, we come to
a different conclusion than for complainant's prior claim. We find that
complainant has successfully stated a claim.
Accordingly, the agency's final decision dismissing complainant's
complaint is reversed. The complaint is hereby remanded to the agency for
further processing in accordance with this decision and 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 (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 29, 2004________________
Date