01A20979
03-24-2003
Valerie E. Sudduth, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Valerie E. Sudduth v. Department of Health and Human Services
01A20979
March 24, 2003
.
Valerie E. Sudduth,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A20979
Agency No. ACF-021-00D
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated November 5, 2001, dismissing her individual
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 record indicates that complainant was a member in a class
complaint that was filed on behalf of a group of Regional Personnel
Specialists, claiming that they had been subjected to unlawful employment
discrimination when in November 1999, the agency reassigned some of their
duties as part of a reorganization/reallocation of duties. The agency
forwarded the case to an EEOC Administrative Judge (AJ) to issue a
decision on class certification. In a decision issued on February 9,
2001, the AJ dismissed the class complaint. The AJ found that it did not
meet the requirements of numerosity, commonality, typicality and adequacy
of representation pursuant to EEOC Regulation 29 C.F.R. � 1614.204(a)(2).
The AJ also found that the class members did not lose any seniority,
wage grade or occupation and did not have to relocate as a result of
the agency's reorganization. In a final order dated April 13, 2001,
the agency concurred with the action of the Administrative Judge in
dismissing the class complaint.1
Prior to the issuance of the AJ's decision denying the class complaint
on February 9, 2001, complainant had filed an individual complaint on
February 4, 2000. In her individual complaint, complainant alleged that
she was subjected to discrimination on the bases of race (African-
American), and sex (female), when her duties as a Regional Personnel
Specialist were reassigned in November 1999, pursuant to an agency
reorganization. The record reflects that by letter dated May 9, 2001,
complainant informed an agency EEO official that she was amending the
individual complaint to include a claim of reprisal for participation in
the previously filed class complaint, discussed above. Specifically,
complainant alleged that agency officials created a hostile work
environment by closely scrutinizing her work, and by "systematically
removing [her] work." Complainant also alleges that agency officials
publically questioned her work ethic and her professional skill
and abilities. In addition, complainant claims that the agency's
reallocation of some of her duties adversely affected her potential
opportunities for promotion.
In a decision dated November 5, 2001, the agency dismissed complainant's
individual complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim. Specifically, the agency determined that complainant
failed to demonstrate that she was an aggrieved employee. In reaching
its finding, the agency found, as did the AJ, that complainant did not
lose seniority, grade or occupation and was not required to relocate as
a result of the agency's reorganization.
On appeal, in addition to the reprisal claims identified in the amendment
to her individual complaint, complainant indicates that after the filing
of the class complaint in July 1999, she was advised in October 1999,
that she was being placed in another agency under a two-year temporary
servicing agreement contract.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she
has been discriminated against by that agency because of race, color,
religion, sex, national origin, age or disabling condition. 29 C.F.R. ��
1614.103, .106(a). The Commission's federal sector case precedent has
long defined an "aggrieved employee" as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
Upon review, we find that the agency's dismissal of complainant's
individual complaint for failure to state a claim was improper. We find
that complainant has raised claims of employment discrimination with
respect to the terms and conditions of her employment. Specifically,
complainant claims that the agency's reorganization caused a reallocation
of her duties, that adversely affected her promotion potential in
the field of human resources. Moreover, complainant claimed in her
amendment to the individual complaint that in reprisal for participating
in the previously filed class action, she was subjected to a hostile
and intimidating work environment. Because complainant has claimed
that the agency's actions were based on her race, sex and in reprisal
for prior EEO activity, she has raised a claim within the purview of
EEOC regulations. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Accordingly, the agency's decision to dismiss complainant's complaint
was improper, and is hereby REVERSED. The complaint as defined herein
is 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
March 24, 2003
__________________
Date
1There is no record of complainant having filed an appeal
from the determination on the class complaint.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 19848
Washington, D.C. 20036
01A20979
2
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 19848
Washington, D.C. 20036
01A20979
6