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.