01a00170
02-18-2000
Bernice Miller, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Bernice Miller, )
Complainant, )
)
v. ) Appeal No. 01A00170
) Agency No. HH2W99009
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
____________________________________)
DECISION
On October 7, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) issued on September 7,
1999, pertaining to her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> The Commission accepts the current appeal
in accordance with EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented herein is whether or not the agency properly dismissed
the current complaint for failure to state a claim.
BACKGROUND
The record reflects that on May 17, 1999 complainant initiated contact
with an EEO Counselor. During the counseling period, complainant
expressed dissatisfaction with the EEO process with regards to a
previously filed complainant. Specifically, complainant alleges the
following:
Col. Deal did not have an assigned EEO Counselor submit a written report
within fifteen days after the complainant filed her formal complaint
on April 12, 1999;
On June 11, 1999, Ms. Janice Jackson, acting WG/CCD, lost complainant's
initial contact form from May 17, 1999;
From August 12, 1998 through June 3, 1999, col. Deal and Ms. Janice
Jackson did not establish a system to periodically evaluate the
effectiveness and timeliness of complainant's complaint and Counselor's
report; and
On October 6, 1998, Lt. Col. Terry R. Hankerson and Col. Deal did not
take appropriate action to ensure the written Counselors report was
submitted to the Complainant within fifteen days after complainant
filed a formal complaint.
Counseling failed, and on June 24, 1999, complainant filed a
formal complaint claiming she was the victim of unlawful employment
discrimination on the bases of reprisal (prior EEO activity). The
complaint was comprised of the matters for which complainant underwent
EEO counseling, discussed above.
Thereafter, on September 7, 1999, the agency issued a final decision
dismissing the current complaint for failure to state a claim.
The agency found that the complainant's complaint simply raised
claims of dissatisfaction with the EEO process, which fail to state
a claim. Furthermore, the agency states that complainant should have
raised the above issues with the agency official responsible for the
quality of complaint processing.
On appeal, complainant, through her representative, argues that she has
previously complied with the applicable rules and regulations requiring
her to raise complaints about the processing of an EEO complaint with
the responsible agency official responsible for complaint processing at
that level, but nothing was done to resolve the problems.
ANALYSIS AND FINDINGS
EEOC Regulation Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be
codified at and herein after referred to as 29 C.F.R. � 1614.107(a)(8)),
provides in relevant part, that an agency shall dismiss a complaint or
portion thereof that alleges dissatisfaction with the processing of a
previously filed complaint. In this case, complainant has clearly alleged
dissatisfaction with the processing of previously filed complaints.
Therefore, pursuant to 29 C.F.R. � 1614.107(a)(8), the agency properly
dismissed the current complaint.
The Commission further notes, EEOC Management Directive MD-110,
at 5-23, provides that if a complainant is dissatisfied with the
processing of his/her pending complaint, whether or not it alleges
prohibited discrimination as a basis for dissatisfaction, he/she should
be referred to the agency official responsible for the quality of
complaint processing. Furthermore, if the complainant has raised his or
her concerns with the appropriate agency official and nothing was done
to resolve the concerns, the complainant may present those concerns to
the EEOC at the following stages of processing:
Where the complainant has requested a hearing, to the EEOC Administrative
Judge when the complaint is under the jurisdiction of the Administrative
Judge; or
Where the complainant has not requested a hearing, to the EEOC Office
of Federal Operations (OFO) on appeal.
Accordingly, complainant should raise any concerns of dissatisfaction
with the EEO process with either an Administrative Judge or the Office of
Federal Operations depending upon whether or not she requests a hearing
for the previously filed complaint.
CONCLUSION
For the reasons set forth herein, the Commission hereby AFFIRMS the
agency's decision to dismiss the instant complaint.
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:
February 18, 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 Equal Employment Assistant1On 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.