Daphne E. Brown, Complainant,v.William M. Daley, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionMar 1, 2000
01a02182 (E.E.O.C. Mar. 1, 2000)

01a02182

03-01-2000

Daphne E. Brown, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.


Daphne E. Brown v. Department of Commerce

01A02182

March 1, 2000

Daphne E. Brown, )

Complainant, )

)

v. ) Appeal No. 01A02182

) Agency No. 00-63-00049D

William M. Daley, )

Secretary, )

Department of Commerce, )

Agency. )

______________________________)

DECISION

The instant matter is being processed following the implementation of

a Memorandum of Understanding (MOU) entered into by the agency, the

Bureau of the Census, and the United States Equal Employment Opportunity

Commission.<1> The MOU was entered into in order to process complaints

arising from the 2000 Decennial Census more effectively and efficiently.

Pursuant to the MOU, individuals file their complaints directly with

the Commission. The Commission, through its Washington, D.C. Field

Office, then conducts an early assessment of complaints and neutral

evaluation of cases. The Washington, D.C. Field Office of the Commission

establishes a record of the complaint by obtaining an affidavit from the

complainant and by contacting an agency official to obtain the necessary

information on the complaint. Based on the record established by the

Washington, D.C. Field Office, the Washington, D.C. Field Office will:

(1) notify the agency that the individual has elected not to file a

formal complaint; (2) issue a decision dismissing the complaint and

notify the complainant or his or her right to appeal the decision to

the Office of Federal Operations; (3) conduct settlement negotiations;

or (4) notify the complainant that the complaint has been accepted and

forward the complaint to the agency for further investigation.

In the instant matter the Washington, D.C. Field Office of the Commission

issued a decision dated January 7, 2000, dismissing the instant complaint

for failing to state a claim. In the complaint complainant claimed that

she was discriminated against on the bases of age, race, and sex, when the

agency undermined her management abilities to either force her resignation

or terminate her. Complainant later amended the complaint to allege

that she was subject to retaliation for filing her EEO complaint when

she was terminated. The record shows that by letter dated November 17,

1999, complainant was terminated from her temporary appointment because

of purported deficiencies in her conduct and continued unacceptable

performance. The November 17, 1999 termination letter cited various

incidents that occurred from July 28, 1999 through November 4, 1999.

The termination letter also mentioned that complainant was counseled about

taking certain actions on September 14, 22, and October 18, 1999, but

that complainant later repeated the actions that led to the counseling.

Regarding the claim of age discrimination, the record shows that

complainant's age at the time of the alleged discrimination was less than

40 years. Because complainant's age was less than 40 years, complainant's

claim is not within the purview of the Age Discrimination in Employment

Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. and her claim

of age discrimination fails to state a claim. See Short v. Department

of the Air Force, EEOC Request No. 05980343 (Apr. 29, 1999).

Based on the complaint itself and the statements by the complainant

gathered by the EEOC during the EEOC's neutral and independent evaluation

of the complaint, the Commission agrees with the earlier decision finding

that complainant's claim of discrimination is insufficient to state a

claim and is properly dismissed for failing to state a claim pursuant

to 64 Fed. Reg. 37,644, 37656 (to be codified and hereinafter cited as

29 C.F.R. � 1614.107(a)(1)). The Commission agrees with the previous

decision's conclusion that complainant has failed to show that the

incidents at issue were related to her race or sex or were motivated

by retaliation for complainant's prior protected activity. Therefore,

we find that the instant complaint is properly dismissed for failing to

state a claim pursuant to � 1614.107(a)(1).

The Washington, D.C. Field Office'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 1, 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 Assistant

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.