01994700_r
05-17-2001
Beverley J. Batts, Complainant, v. Lawrence J. Delaney, Acting Secretary, Department of the Air Force, Agency.
Beverley J. Batts v. Department of the Air Force
01994700
May 17, 2001
.
Beverley J. Batts,
Complainant,
v.
Lawrence J. Delaney,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01994700
Agency No. LU1M99020
DECISION
Upon review, the Commission finds that the agency improperly dismissed
complainant's complaint. Complainant claims that she was discriminated
against on the bases of race (unknown), color (unknown), sex (female),
age (unknown) and reprisal when her position with the agency was
�disestablished.�
The agency defined complainant's claims of discrimination as follows:
In September 1996, complainant was reassigned to the position of
Supervisory Management Analyst, GM-343-13;
In 1997 the Inspector General recommended that complainant's position be
realigned under SMC/AXP, but, no action was taken on this recommendation;
On February 19, 1999, complainant received electronic mail messages
regarding the �disestablishment� of her position;
Complainant was denied the opportunity to represent management during
a mediation conference on an issue raised by her subordinate; and
On February 26, 1999, complainant's Supervisor sent an electronic mail
message to all AXP supervisors regarding preparation of staff summary
sheets, and, complainant's name was listed in the �cc� box rather than
the �to� box of the electronic mail message.
Based on complainant's statement on appeal, dated May 8, 1999, the
Commission finds that the agency considered some of the background
and supporting information to the actual claim of discrimination as
separate claims. The complaint only concerns the �disestablishment� of
complainant's position. Therefore, the Commission redefines complainant's
complaint as alleging only that she was discriminated against when her
position was �disestablished.�
The agency dismissed the claim regarding the �disestablishment� of
complainant's position for failure to state a claim, pursuant to 29
C.F.R. � 1614.107(a)(1); however, the Commission cannot determine
whether complainant states a claim based on the information contained
in the record, because it is unclear what �disestablishment� means in
this particular case.<1> The Commission requests that the agency
supplement the record to clarify: what �disestablishment� means
in this particular case and as applied to this complainant; whether
complainant's position was �disestablished;� complainant's position title
before and after complainant's �disestablishment;� complainant's duties
and responsibilities before and after �disestablishment;� complainant's
duty location before and after �disestablishment;� and, the people and
positions complainant supervised before and after �disestablishment.�
Therefore, the agency's decision is VACATED and the complaint is REMANDED
to the agency for further processing pursuant to the Commission's ORDER
set forth herein.
ORDER
The agency is ORDERED to conduct a supplemental investigation and place
evidence in the record addressing the following issues:
What does �disestablishment� mean in this particular case and as applied
to this complainant;
Was complainant's position �disestablished;�
What was complainant's position title before and after �disestablishment;�
What were complainant's duties and responsibilities before and after
�disestablishment;�
Where was complainant's duty location before and after �disestablishment;�
and
Who did complainant supervise before and after �disestablishment� and
what were their positions?
Within 30 days of the date this decision becomes final the agency
shall either issue a letter to complainant accepting the complaint
for investigation or issue a new decision dismissing the complaint.
Any new decision dismissing the complaint for failure to state a claim
shall address the issues noted in (1) - (6) of this Order. A copy of
the agency's letter of acceptance or new decision must be sent to the
Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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 (M0900)
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
May 17, 2001
__________________
Date
1The incidents dismissed by the agency in
its decision pursuant to 29 C.F.R. � 1614.107(a)(2) and 29 C.F.R. �
1614.107(a)(4), are not separate claims in the complaint and are therefore
not at issue in this appeal.