Loretta J. Alston, Complainant,v.Elaine Chao, Secretary, Department of Labor Agency.

Equal Employment Opportunity CommissionNov 29, 2004
01a45382 (E.E.O.C. Nov. 29, 2004)

01a45382

11-29-2004

Loretta J. Alston, Complainant, v. Elaine Chao, Secretary, Department of Labor Agency.


Loretta J. Alston v. Department of Labor

01A45382

November 29, 2004

Loretta J. Alston,

Complainant,

v.

Elaine Chao, Secretary,

Department of Labor

Agency.

Appeal No. 01A45382

Agency No. CRC0411047

DECISION

The Commission vacates the agency's final decision dismissing the

complaint and remands for an investigation.

Complainant filed a timely appeal with this Commission from the agency's

decision dated July 8, 2004, 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. In her complaint, complainant, a GS-11 Grants

Specialist in the Office of Contracts and Grants Management at the

Department of Labor, alleged that she was subjected to discrimination on

the bases of race (African-American), sex (female), and age (D.O.B. 1957)

when:

on or about September 9, 2003, the agency failed to respond to an

inquiry concerning the results of a desk audit;

in or about January of 2004, the agency failed to promote her despite

doing work above her grade level for the past three years; and

in or about January of 2004, the agency reassigned her to a new unit

without providing formal documentation.<1>

The final agency decision (FAD) dismissed the complaint. The agency

found that complainant's desk audit claim was untimely, contending that

complainant received the results of a desk audit in November 2002 but

did not initiate EEO contact until October 3, 2003. The agency stated

its belief that complainant requested a second desk audit in July

2003 only to revive an otherwise untimely claim. The FAD failed to

address complainant's claim of non-promotion. The agency dismissed the

reassignment allegation for failure to state a claim, arguing that failure

to provide formal documentation is not a tangible employment action.

On appeal, complainant contends that a second desk audit was scheduled in

July of 2003, because she was informed by the agency that the results of

the November 2002 audit were lost. Complainant reiterates her claim of

discriminatory non-promotion. Lastly, complainant makes several factual

allegations not presented to the counselor.<2>

In its appeal brief, the agency restates its contention that complainant

made untimely EEO contact and makes additional arguments in favor of

dismissing the complaint. The agency contends that a desk audit's finding

that complainant's position is properly classified does not constitute

a harm to the terms and conditions of complainant's employment because

the terms and conditions of complainant's employment did not change.

The agency also avers that complainant's non-promotion allegation

was the subject of a union grievance procedure and should therefore

be barred. Finally, the agency argues that complainant has abandoned

her reassignment claim.

We find that the agency erred when it dismissed allegations (1) and (2) of

the complaint, but that complainant has, indeed, abandoned allegation (3).

We find that complainant abandoned her allegation regarding reassignment

documentation. Complainant provided a copy of the FAD in her appeal

brief with notations made on the side indicating she was never actually

reassigned. She also makes no mention of the allegation in her appeal

brief. Consequently, allegation (3) is dismissed.

We find that complainant successfully stated a claim in allegation (1).

The Commission has consistently held that a desk audit can be conducted

in a discriminatory manner such that it harms the terms of conditions of

one's employment.<3> Haynes v. Department of the Treasure, EEOC Appeal

No. 01A00102 (July 24, 2000); Hawkins v. Department of the Air Force,

EEOC Appeal No. 01996022 (December 13, 2000); Giesalhart v. Department of

the Army, EEOC Appeal No. 01975043 (March 19, 1998); Nguyen v. Department

of the Navy, EEOC Request No. 05960074 (May 8, 1997); Secora v. United

States Information Agency, EEOC Appeal No. 01954172 (March 20, 1997);

Moten v. Federal Energy Regulatory Commission, EEOC Request No. 05940583

(October 10,1995). Complaint alleged that the agency discriminated

against her by failing to provide the results of her desk audit and

thereby avoiding promoting her. Complainant thereby alleged a tangible

employment action that harmed her conditions of employment, successfully

stating a claim. Haynes, supra.

Complainant's allegation (1) was, furthermore, timely made.

Initial EEO contact must be made within 45 days of the alleged

discriminatory incident. 29 C.F.R. � 1614.105(a)(1). The time limit

begins when the complainant reasonably suspects discrimination occurred.

Ball v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988).

Regarding allegation (1), complainant reasonably suspected discrimination

when the agency failed to respond to complainant's request on September

9, 20003 for the results of her desk audit. Complainant made initial

EEO contact on October 3, 2003, within the 45 day limit.

The agency argued that complainant frivolously requested the desk audit

in July of 2003 in order to improperly manipulate the EEO process and

avoid its time restraints. The agency, however, provides no proof to

show complainant had an improper motive. Complainant, on the other hand,

provides a detailed explanation of why a desk audit was to be legitimately

conducted in July of 2003. We, therefore, find that complainant had

a reasonable suspicion of discrimination on September 9, 2003 and made

timely EEO contact.

Lastly, we find that allegation (2) is not barred for having been

previously addressed in a union grievance procedure. No evidence

exists in the record, such as a copy of a filed grievance, showing

that complainant initiated a formal procedure to address this specific

allegation The record indicates that complainant voiced general concerns

about the agency's fair employment practices in a meeting with a union

representative. The attendees of the meeting discussed the issue,

but no there is no indication they initiated formal action.

Accordingly, the Commission reverses the FAD with regard to allegations

(1) and (2), and remands these claims for further processing in

accordance with this decision and the order below.

The Commission affirms the FAD's dismissal of allegation (3) for the

reasons set forth in this decision.

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 (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

__November 29, 2004________________

Date

1The agency failed to delineate complainant's

allegations in its final decision or the counselor's report. A review of

complainant's informal complainant, formal complaint, and correspondence

with the EEO counselor reveals the allegations above.

2In addressing the issues before the Commission on appeal, we only

consider facts in the record. Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-15 (November 9, 1999).

If complainant wishes for her claim to be framed differently or to add

additional allegations, she must follow the proper procedures with the

agency's EEO office during the investigation.

3The agency argues erroneously that complainant is not aggrieved because

there was no change in complainant's employment. If a change were a

requisite for harm, allegations of non-promotion or non-selection would

not state a claim.