01A23746_r
10-11-2002
Joyce A. Beverly, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Joyce A. Beverly v. Department of Justice
01A23746
October 11, 2002
.
Joyce A. Beverly,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A23746
Agency No. F-01-5626
DECISION
Complainant filed a timely appeal with this Commission from the
final agency decision, dated June 4, 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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
Complainant, a Logistics Officer employed by the Department of the
Navy<1>, was on assignment at the National Security Agency (NSA).
Specifically, she was assigned to the NSA's Interagency Training Center
(ITC). Believing that she was being discriminated against by her
supervisor, the Dean of ITC, complainant contacted the EEO office at NSA.
Complainant was purportedly told by the NSA EEO staff that she could not
proceed with the EEO process at NSA because the Dean was an employee of
the Federal Bureau of Investigations (hereinafter "agency" or "FBI").
Thereafter, complainant contacted the FBI's EEO office claiming that she
was discriminated against when her supervisor removed her authority and
responsibilities as a Logistics Officer. Informal efforts to resolve
her concerns were unsuccessful. On December 28, 2001, complainant filed
a formal complaint based on race, sex, color, disability and in reprisal
for prior protected activity.
On June 4, 2002, the agency issued a decision dismissing the complaint
for failure to state a claim. The agency found that complainant did
not have standing to file a complaint against the FBI, because she is
not an employee or applicant of the FBI. Further, if complainant's
claims were substantiated, the agency maintained that it is the NSA,
not the FBI, that could request the supervisor's removal, reassignment,
or prohibit his presence at NSA facilities. The agency also noted that,
if necessary, it should be contacted by the NSA to assist in obtaining
a statement from the supervisor.
On appeal, complainant argues that she relied, to her detriment, on
the advice of EEO Counselors; and that she was prohibited from filing a
complaint against her supervisor, and the FBI, through the NSA EEO office
and directed to do so through the FBI's EEO office. Complainant argues
that she was never informed by the FBI, during initial counseling, the
informal resolution process or the final interview, that her complaint
should be filed through NSA. Whether or not complainant was an employee
with the FBI, complainant contends that it was the FBI that "had ultimate
control over the terms, conditions, and privileges of employment of
[the supervisor] . . . ."
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Here, complainant, a Department of the Navy employee, claims that she
was discriminated against when her supervisor, a Department of Justice
employee, removed her authority and responsibilities as a Logistics
Officer while both were on assignment at the NSA's ITC. While the
agency dismissed the complaint for failure to state a claim, noting that
complainant lacked standing, we disagree. The proper agency with which to
file a complaint is the agency with jurisdiction over the matter giving
rise to the alleged discriminatory action. See Beeman v. Middendorf,
F.Supp. 713, 714 (C.D.Cir. 1977); see also Fautroy v. Department of the
Treasury, EEOC Appeal No. 01980259 (finding that Department of Treasury
employee allegedly harassed by security guard employed by General Services
Administration should be jointly processed by both agencies). Since
complainant is employed by the Department of the Navy, the supervisor
is employed by the FBI, and the alleged discrimination occurred at
NSA, the Commission finds that the Department of the Navy, NSA, and
Department of Justice should jointly process the instant complaint.
By this decision, NSA and the Department of the Navy are notified of
their joinder to this matter.
Accordingly, the agency's decision dismissing the complaint is VACATED.
The complaint is REMANDED to the agency, the Department of the Navy,
and the NSA for further processing in accordance with the Order below.
ORDER
The agency is ORDERED to contact the Department of the Navy and the
National Security Agency (NSA) to jointly process complainant's complaint.
The agency shall complete the initial contact with the Department of
the Navy and NSA and begin joint processing of this case within thirty
(30) calendar days of the date this decision becomes final. The agencies
are ORDERED to process the claim in accordance with 29 C.F.R. 1614. 108.
The agencies shall issue to complainant a copy of the jointly processed
investigative file and also shall notify complainant of the appropriate
rights within one hundred and fifty (150) calendar days of the date
this decision becomes final, unless the matter is otherwise resolved
prior to that time. If complainant requests a final decision without
a hearing, the agencies 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 that
her complaint is being jointly processed with the Department of the
Navy and NSA 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
October 11, 2002
__________________
Date
1 The agency states that the Department of
the Navy is "a component of the Department of Defense." However, for
the Commission's purposes, the Department of the Navy is considered a
separate and distinct agency.