01A22059_r
09-25-2003
Remell Luckett, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Remell Luckett v. Department of Defense
01A22059
September 25, 2003
.
Remell Luckett,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Appeal No. 01A22059
Agency Nos. 98DCMW05003 and 00DCMW05001
Hearing Nos. 320-AO-8251X and 320-AO-8268X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final order.
The record reveals that complainant, a sales store clerk at the agency's
Fort Carson Commissary, filed formal EEO complaints on November 24,
1998 and on November 1, 1999. In her formal complaints, complainant
alleged that the agency retaliated against her when:
(1) it did not select her for the position of Lead Sales Store Checker;
and
it denied her temporary duties that she requested while on light duty
assignment, specifically duties in the administrative office and the
cash cage.<1>
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing
for claim (1) and held a hearing on claim (2). Following a hearing on
claim (2), the AJ issued a decision on claims (1) and (2), finding no
discrimination. The agency's final order implemented the AJ's decision.
Complainant makes no new contentions on appeal.
Upon review of the record in its entirety we find that the issuance of a
decision without a hearing was appropriate for claim (1) as complainant
did not present evidence from which a reasonable fact finder, in the
this case the AJ, could conclude that the agency's non-selection of
complainant was motivated by retaliatory animus. Concerning claim (2)
we find that the AJ's findings of fact are supported by substantial
evidence in the record. Accordingly, we discern no basis to disturb
the AJ's decision, and we affirm the agency's final order.
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 (S0900)
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. 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
_September 25, 2003_________________
Date
1In addition to claims (1) and
(2), complainant also alleged that the agency proposed to suspend her
for unauthorized possession of unpurchased cheese. The agency dismissed
this matter, and the Commission affirmed the dismissal. See Luckett
v. Department of Defense, EEOC Appeal No. 01992165 (November 4, 1999),
request for reconsideration denied, EEOC Request No. 05A00250 (June
28, 2000). However, the agency did suspend complainant, but complainant
did not motion to amend her complaint to include the effectuated action.
Consequently, the AJ did not address this matter in his decision.