01a45908
01-19-2005
Sheila L. Lay, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Sheila L. Lay v. Department of Defense
01A45908
January 19, 2005
.
Sheila L. Lay,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Finance & Accounting Service),
Agency.
Appeal No. 01A45908
Agency No. DFAS-IN-CR-04-079
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 27, 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. In her
complaint, complainant alleged that she was subjected to discrimination
on the bases of race (African-American), sex (female), and in reprisal
for prior EEO activity arising under Title VII when the agency subjected
complainant since 1997 to a hostile work environment by (1) failing to
assign to her meaningful work or giving her leadership duties since 2001,
and (2) giving her low annual performance ratings for fiscal years 2002
and 2003.
The agency dismissed the complaint for (1) not being brought to the
attention of an EEO Counselor in a timely manner, (2) not stating a
claim, and (3) raising a matter that had already been decided by an EEOC
Administrative Judge (AJ) and the agency. See Final Agency Decision.
As the Commission finds that this last basis for dismissal is sufficient,
the Commission will not address the other two. Section 29 C.F.R. �
1614.107(a)(1) provides that an agency shall dismiss a complaint or
a portion of a complaint that fails to state a claim, or states the
same claim that is pending before, or has been decided by an agency
or the Commission. Here, the agency did so based on the decision it
issued following an AJ's determination on July 7, 2004 in EEOC Case
No. 220-A3-5065X (Agency Complaint No. CLEVE-AC-02-010).
In that prior complaint, filed June 28, 2002, complainant alleged
that management was not assigning to her meaningful work, informing
her properly of assignment duties and deadlines, and giving her
low performance ratings. See Agency Complaint No. CLEVE-AC-02-010.
Ultimately, the AJ hearing the matter issued a decision without a hearing
finding no discrimination and complainant appealed.<1> Complainant
raised many of the same arguments in that appeal as in this one. Now,
complainant argues that the procedural dismissal of the present complaint
(DFAS-IN-CR-04-079) should be reversed in essence because complainant
followed the AJ's instructions in filing this new complaint based on the
allegations set forth in the prior complaint. Specifically, complainant
refers to her brief in opposition to summary judgment, filed on April
20, 2004, in the prior case (CLEVE-AC-02-010), where she raised what she
called �new discoveries.� See Memorandum in Opposition of a Finding and
Conclusion of Law Without a Hearing, filed in Lay v. Dep't of Defense,
Agency No. CLEVE-AC-02-010.
As explained by the Commission in its decision on that prior matter,
these �new discoveries� were not in fact new. Complainant's complaint
in that case solely alleged that the agency discriminated against her
in reprisal for prior EEO activity. The �new discoveries� she raised
were merely examples of how management allegedly treated her unfairly
in retaliation for her prior protected acts. She never stated that she
believed her treatment was due to her race or sex. She only raised those
bases of discrimination when that matter came up on appeal and when she
filed the present complaint. What perplexes the Commission is why she
did not raise these new bases of discrimination to the AJ directly.
Complainant argues that this procedural dismissal should be reversed
because her claim was impermissibly fragmented. Complainant is mistaken.
�Fragmentation often results from a failure to distinguish between the
claim the complainant is raising and the evidence (factual information)
s/he is offering in support of that claim.� Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), Nov. 9,
1999, at 5-5 (emphasis in original). Here, the AJ did not fragment
complainant's claim because, as explained above, when she first raised
the �new discoveries� to the AJ, she did not allege then that they
constituted new bases of discrimination. Therefore, she was not raising
new claims. Quite the contrary, she was merely repeating her original
claim of reprisal. Complainant may have been confused by the AJ's
instructions, and perhaps led to believe that complainant could raise
the same claims under different categories of discrimination. However,
the EEOC regulations are clear on this matter. Section 1614.107(a)(1)
provides that the agency shall dismiss a complaint that states the
same claim that is pending before or has been decided by the agency
or Commission. See 29 C.F.R. � 1614.107(a)(1).
Accordingly, dismissal based on this being a duplicate claim is proper.
The agency's final decision dismissing complainant's complaint is
AFFIRMED.
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
January 19, 2005
__________________
Date
1 The Commission is issuing a decision in
that prior matter at the same time as this present decision. See Lay
v. Dep't of Defense, EEOC Appeal No. 01A45862.