Brenda C. Compton-Turner, Complainant,v.Richard W. Riley, Secretary, Department of Education, Agency.

Equal Employment Opportunity CommissionMar 23, 2000
01985791 (E.E.O.C. Mar. 23, 2000)

01985791

03-23-2000

Brenda C. Compton-Turner, Complainant, v. Richard W. Riley, Secretary, Department of Education, Agency.


Brenda C. Compton-Turner v. Department of Education

01985791

March 23, 2000

Brenda C. Compton-Turner, )

Complainant, )

)

v. ) Appeal No. 01985791

) Agency No. ED-9804000

Richard W. Riley, )

Secretary, )

Department of Education, )

Agency. )

______________________________)

DECISION

The Commission finds that the June 10, 1998 final agency decision (FAD),

which dismissed Complainant's formal complaint of discrimination on the

basis of untimely EEO counselor contact, was proper pursuant to the

provisions of 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and

hereinafter referred to as 29 C.F.R. �1614.107(a)(2)).<1>

Complainant sought EEO counseling on June 18, 1997, alleging that she had

been discriminated against on the bases of race, color, sex and reprisal

for prior EEO activity when: (1) she was denied a training opportunity;

(2) on June 17, 1997, she was issued a proposed letter of reprimand;

and, (3) comments were made on her General Performance Appraisal System

(GPAS) evaluation.

On August 6, 1997, Complainant filed a formal complaint of discrimination

alleging she had been discriminated against on the bases of race, color,

sex and reprisal when:

(1) she was denied a training opportunity;

(2) she was issued a proposed letter of reprimand dated June 17, 1997,

and subsequent memo dated June 20, 1997, attacking her competency and

professionalism; and

(3) on July 25, 1997, she was provided with comments made on her GPAS

rating printed on June 10, 1997, which stated that she had violated

the agency's code of conduct.

By memorandum dated September 10, 1997, Complainant asked to amend her

August 6, 1997 formal complaint by withdrawing claim (3). Complainant

stated that pursuant to the advice of her union representative, she

wished to file a grievance through the negotiated grievance procedure

on the matter raised in claim (3).

On September 9, 1997 (one day before Complainant requested to be

allowed to withdraw claim (3) from her August 6, 1997 formal complaint),

Complainant sought EEO counseling alleging that she had been discriminated

against on the bases of race, color, sex and reprisal when on July 25,

1997, she received a score of "3" on her 1996-97 General Performance

Appraisal. Complainant further alleged that she had been discriminated

against by the comments made on said appraisal. On November 3, 1997,

Complainant filed a formal complaint of discrimination that is the subject

of the instant appeal, regarding the same issue brought to the attention

of the EEO counselor on September 9, 1997. Complainant further alleged

that the score and comments in question were not supported by her conduct

or performance during the rating period.

On June 10, 1998, the agency dismissed the November 3, 1997 formal

complaint on the grounds of untimely EEO counselor contact. The agency

further after finding that Complainant had not only raised this issue

in her August 6, 1997 formal complaint, but had also withdrawn it on

September 10, 1997. The agency further determined that the matter

raised in the instant complaint was previously raised in the complaint

filed on August 6, 1997, as the matter identified as "claim (3)" which is

discussed above. The agency also noted that complainant withdrew claim

(3) from the August 6, 1997 complaint when she decided to pursue this

matter through the grievance process.

On appeal, Complainant contends that her EEO counselor contact was timely.

In response, the agency contends that complainant's EEO Counselor contact

was untimely. The agency further contends that the complaint should also

be dismissed on the grounds of failure to state a claim after finding

that because Complainant obtained a rating of "pass" on her appraisal,

she was not aggrieved under EEOC Regulations.

Volume 64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter

referred to as EEOC Regulation 29 C.F.R. � 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 Commission or the agency.

The record shows that the instant complaint raised the issue of

Complainant's 1996-97 General Performance Appraisal. The record further

shows that this issue had already been raised by Complainant in her August

6, 1997 formal complaint. The record also shows that on September 10,

1997, Complainant withdrew this claim, identified as claim (3), from

her August 6, 1997 formal complaint. The Commission has consistently

held that a Complainant may not file a second complaint where she has

previously raised and withdrawn the issue, even where the original issue

was withdrawn during EEO counseling. Williams v. United States Postal

Service, EEOC Request No. 05950696 (December 19, 1996). Accordingly,

the agency's decision to dismiss complainant's complaint was proper and

is AFFIRMED.

Because we affirm the dismissal of the complaint for the reason cited

herein, we find it unnecessary to address the agency's decision to

dismiss the complaint on alternative grounds.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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 23, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1 On 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.