Barbara B. Simmons, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Contract Audit Agency), Agency.

Equal Employment Opportunity CommissionMar 9, 2000
01a00219 (E.E.O.C. Mar. 9, 2000)

01a00219

03-09-2000

Barbara B. Simmons, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Contract Audit Agency), Agency.


Barbara B. Simmons, )

Complainant, )

)

v. ) Appeal No. 01A00219

) Agency No. E99-18

William S. Cohen, )

Secretary, )

Department of Defense, )

(Defense Contract Audit Agency), )

Agency. )

____________________________________)

DECISION

The Commission finds that the agency's decision dated September 13,

1999 dismissing a portion of complainant's complaint for failing to

state a claim and the remaining portion of the complaint for stating

the same as previously raised by complainant, is proper pursuant to the

regulation set forth at 64 Fed. Reg. 37,644, 37656 (to be codified and

hereinafter cited as 29 C.F.R. � 1614.107(a)(1)).<1>

Complainant alleged that she was discriminated against when:

Complainant was requested to complete an Electronic Personnel Security

Questionnaire.

Management harassed complainant by denying her access to files created

by the agency and to a petition against her.

The agency dismissed claim 1 for failing to state a claim. The agency

found that claim 1 was filed with the wrong agency. The Commission finds

that complainant has failed to show how she was aggrieved in claim 1.

Therefore, we find that claim 1 was properly dismissed for failing to

state a claim. Because of our disposition we do not address whether

claim 1 was filed with the correct agency.

The agency dismissed claim 2 for stating the same claim as raised

by complainant in E99-09. The Commission agrees with the agency.

Complainant effectively argues that claim 2 in the instant complaint was

raised in E99-09, but that the issue was not properly investigated in the

prior complaint. Even if complainant were correct in this assertion,

she should raise such an issue in the context of the processing of her

prior complaint. For instance, if the complaint in E99-09 was before

an EEOC Administrative Judge, then she should inform the administrative

judge of any issues she feels were not appropriately investigated by

the agency. Therefore, we find that claim 2 was properly dismissed for

stating the same claim as previously raised by complainant.

The agency's decision dismissing the complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

March 9, 2000

DATE

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________________ _________________________ Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

Federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.