Sharon L. Austin, Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Contract Management Agency) Agency.

Equal Employment Opportunity CommissionOct 9, 2003
01A30452_r (E.E.O.C. Oct. 9, 2003)

01A30452_r

10-09-2003

Sharon L. Austin, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Contract Management Agency) Agency.


Sharon L. Austin v. Department of Defense (Defense Contract Management

Agency)

01A30452

October 9, 2003

.

Sharon L. Austin,

Complainant,

v.

Donald H. Rumsfeld,

Secretary,

Department of Defense,

(Defense Contract Management Agency)

Agency.

Appeal No. 01A30452

Agency No. YT-02-027

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 and as moot pursuant to 29 C.F.R. � 1614.107(a)(5). In her

complaint, complainant alleged that she was subjected to discrimination

on the bases of race, color, disability, and reprisal for prior EEO

activity when:

On or about June 3, 2002, complainant because aware that she was not

given an equal opportunity to compete for a training position qualifying

for an Industrial Specialist (GS-1150-09), with promotional potential.

In a final decision dated September 20, 2002, the agency reasons that

complainant did not lose any pay or suffer any injury as a result of the

alleged discrimination. Moreover, the agency reasons that complainant

cannot be compared to the employee identified in her complaint as

receiving preferential treatment, since the two employees held different

jobs, at different grades, and were thus never similarly situated.

After a review of the agency's final decision, the Commission finds that

the agency has addressed the merits of complainant's complaint without

a proper investigation as required by the regulations. We find that

the agency's articulated reason for the action in dispute, i.e., that

complainant and the identified comparison employee were not similarly

situated, goes to the merits of complainant's complaint, and is irrelevant

to the procedural issue of whether she has stated a justiciable claim

under Title VII. See Osborne v. Department of the Treasury, EEOC Request

No. 05960111 (July 19, 1996); Lee v. United States Postal Service, EEOC

Request No. 05930220 (August 12, 1993); Ferrazzoli v. United States

Postal Service, EEOC Request No. 05910642 (August 15, 1991).

By alleging that she was denied the opportunity for training that would

have qualified her for a position with promotion potential, complainant

has shown an injury or harm to a term, condition, or privilege of

employment for which there is a remedy. See Diaz v. Department of the

Air Force, EEOC Request No. 05931049 (April 21, 1994). Furthermore,

the complaint is not moot because complainant has not been given the

remedy of being able to compete for a training position qualifying for

an Industrial Specialist (GS-1150-09), with promotional potential.

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

October 9, 2003

__________________

Date