Donna Craghead, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 15, 2001
01a00535 (E.E.O.C. Feb. 15, 2001)

01a00535

02-15-2001

Donna Craghead, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Donna Craghead v. Department of Veterans Affairs

01A00535, 01A05679

February 15, 2001

.

Donna Craghead,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal Nos. 01A00535, 01A05679

Agency No. 984212

DECISION

On November 4, 1999, Donna Craghead (complainant) filed a timely appeal

(EEOC Appeal No. 01A00535) with this Commission from an agency's decision

dated October 8, 1999 (FAD 1), partially dismissing her complaint of

unlawful employment discrimination in violation of Title VII of the Civil

Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and

the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29

U.S.C. � 621 et seq. FAD 1 indicated that one of complainant's claims was

accepted for investigation. On July 31, 2000, complainant filed a second

timely appeal (EEOC Appeal No. 01A05679) from an agency final decision

dated June 27, 2000 (FAD 2), which addressed the portion of complainant's

complaint that was accepted for investigation in FAD 1. As these appeals

involve the same complaint, they are hereby consolidated.<1> In her

complaint, complainant alleged that she was subjected to discrimination

on the bases of sex (female) and age (46 at relevant time) when, on

October 5, 1998, she was not promoted. Complainant also checked a box

on the formal complaint form labeled �Examination/Test.�

The record reveals that during the relevant time, complainant was employed

as a Supply Technician at the agency's Beckley, West Virginia Medical

Center. Believing she was a victim of discrimination, complainant sought

EEO counseling and subsequently filed a formal complaint on February 25,

1998. On October 8, 1999, the agency dismissed the �Examination/Test�

portion of complainant's complaint, noting that she failed to discuss

this topic with the EEO Counselor. The agency accepted the promotion

issue for investigation.

At the conclusion of the investigation, complainant was provided a

copy of the investigative report and requested a hearing before an

EEOC Administrative Judge (AJ). The AJ dismissed the complaint, finding

that it failed to state a claim. Specifically, the AJ determined that

complainant was not an aggrieved individual because the position she

sought was never competitively announced, but was simply �created� as

duties accreted to another employee. The AJ found that complainant was

not eligible to receive the accreted duties because she was serving in

another department at the time. The agency accepted the AJ's dismissal.

On appeal, complainant notes, through her representative, that she did

discuss the issues raised in her formal complaint with the EEO Counselor.

Complainant argues that on November 7, 1998, her representative wrote a

letter to the agency's local EEO Officer and complained of discrimination

in the agency's merit promotion program, citing several questionable

practices surrounding the placement of a certain employee (the selectee or

S1) into an Inventory Management position on or around October 5, 1998.

Complainant also refers to a paragraph in the EEO Counselor's report

in which the counselor notes that he discussed with complainant and her

representative the �issues and basis for filing her case.� In response,

the agency asks the appeal of FAD 1 be dismissed as it involves a partial

dismissal and asks that FAD 2 be affirmed.

FINDINGS AND ANALYSIS

After a careful review of the EEO Counselor's Report, the formal

complaint, and other documents submitted by complainant, we find that

complainant's claim is, in essence, that the agency's decision to place

the selectee (S1) in a position which it subsequently labeled �Inventory

Management Specialist� was discriminatory. Complainant alleged that

when her former supervisor (FS) left the agency, FS's position, Inventory

Management Specialist (IMS), was filled by S1, although the agency did not

post the job and did not give anyone an opportunity to apply. It appears

that complainant checked the box marked �Examination/Test� on her formal

complaint form, as well as �Promotion� because she was attempting to

indicate that the entire turn of events surrounding the eventual placement

of S1 into the IMS position was discriminatory�whether it is called a

failure to promote or a failure to employ the appropriate promotional

examinations/testing procedures. A letter sent to the agency's EEO

office by complainant's representative describes complainant's complaint

in this fashion. We therefore find that complainant's entire complaint

was brought to the attention of the EEO Counselor and that no part of

it should have been dismissed.

Moreover, after a careful review of the AJ's decision and the

investigative file, we find that the AJ addressed the merits of

complainant's complaint without a proper investigation as required by the

regulations. It is well-settled that an agency shall accept a complaint

from any aggrieved employee or applicant for employment who believes

that he or she has been discriminated against by that agency because of

race, color, religion, sex, national origin, age or disabling condition.

29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case

precedent has long defined an "aggrieved employee" as one who suffers

a present harm or loss with respect to a term, condition, or privilege

of employment for which there is a remedy. Diaz v. Department of the

Air Force, EEOC Request No. 05931049 (April 21, 1994). Here, the AJ

essentially determined that complainant was not qualified to fill the IMS

position because it was only available to one who had �accreted� certain

of FS's duties and worked in a certain department. This goes to the

merits of complainant's complaint, and is irrelevant to the procedural

issue of whether she has stated a justiciable claim under Title VII.

See Osborne v. Department of the Treasury, EEOC Request No. 05960111 (July

19, 1996); Lee v. United States Postal Service, EEOC Request No. 05930220

(August 12, 1993); Ferrazzoli v. United States Postal Service, EEOC

Request No. 05910642 (August 15, 1991). Complainant alleged that due

to her sex and age she was denied placement into the IMS position and

that the process by which the position was filled was discriminatory.

She therefore stated a claim of discrimination.

Accordingly, after a careful review of the records, we find that the

agency's decisions were improper. The decisions are REVERSED and the

matter REMANDED in accordance with this decision and the ORDER below.

ORDER

The complaint is remanded to the Hearings Unit of the Philadelphia

District EEOC Office for scheduling of a hearing in an expeditious manner.

The agency is directed to submit a copy of the complaint file to the

EEOC Hearings Unit within fifteen (15) calendar days of the date this

decision becomes final. The agency shall provide written notification

to the Compliance Officer at the address set forth below that the

complaint file has been transmitted to the Hearings Unit. Thereafter,

the Administrative Judge shall issue a decision on the complaint in

accordance with 29 C.F.R. � 1614.109 and the agency shall issue a final

action in accordance with 29 C.F.R. � 1614.110.

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

February 15, 2001

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this 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 29 C.F.R. Part 1614 in deciding the

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

the Commission's website at www.eeoc.gov. The regulation found at

29 C.F.R. � 1614.107(b) provides that where the agency believes that

some but not all of the claims in a complaint should be dismissed, the

agency shall notify the complainant in writing of its determination,

the rationale for that determination and that those claims will not be

investigated, and shall place a copy of the notice in the investigative

file. Such a determination is not appealable until final action is taken

on the remainder of the complaint. Here, because the partial dismissal

was issued prior to November 9, 1999, complainant filed an appeal.

Had the remainder of the complaint been pending before the agency or an

Administrative Judge, the dismissed portion would have been remanded for

consolidation. However, as the agency has rendered a final decision on

the accepted portion of the complaint, the Commission hereby consolidates

the appeals and addresses the matter as a whole.