Henrietta Miller, Complainant,v.R.L. Brownlee, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionNov 29, 2004
01a44965 (E.E.O.C. Nov. 29, 2004)

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