Dorothy T. Pleasant, Complainant,v.Mel R. Martinez, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity CommissionMar 24, 2003
01a22728 (E.E.O.C. Mar. 24, 2003)

01a22728

03-24-2003

Dorothy T. Pleasant, Complainant, v. Mel R. Martinez, Secretary, Department of Housing and Urban Development, Agency.


Dorothy T. Pleasant v. Department of Housing and Urban Development

01A22728

March 24, 2003

.

Dorothy T. Pleasant,

Complainant,

v.

Mel R. Martinez,

Secretary,

Department of Housing and Urban Development,

Agency.

Appeal No. 01A22728

Agency No. FW-99-06

DECISION

Complainant filed a timely appeal with this Commission from a final agency

decision, issued on March 14, 2002, 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., Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act

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

Complainant contacted the EEO office claiming that she was subjected to

discrimination based on race, sex, age, disability, and in reprisal for

prior protected EEO activity. Informal efforts to resolve complainant's

concerns were unsuccessful. Subsequently, on February 19, 1999,

complainant filed a formal complaint. The agency, in its decision,

framed the claims as follows:

(1) The agency failed to investigate complainant's prior EEO complaints

filed since 1995;

(2) The former Assistant Secretary for Congressional and

Intergovernmental Relations gave false information to complainant's

Congressman. Complainant's Congressman had written to agency officials

inquiring about the processing of complainant's prior complaints;

(3) The agency failed to adjust complainant's leave and the effective

date of her 1998 within-grade, which adversely impacted complainant's

time and attendance leave records, pay and benefits, in reprisal for

winning her Workers' Compensation claims and repayment of part of the

688 hours of Absence Without Leave (AWOL) that complainant was charged;

(4) EEO Investigators denied complainant the opportunity to file a

Rebuttal Affidavit in agency Case No. FW-97-28 in February 1997.

In a final decision dated May 24, 1999, the agency dismissed Agency

No. FW-99-06 and eleven other complaints filed by complainant for abuse

of process, finding that complainant �clearly misused the EEO process

for ends other than which it was designed to accomplish.� On appeal, the

Commission reversed the agency's dismissal of all twelve complaints for

abuse of process and remanded the complaints to the agency for further

processing. Pleasant v. Department of Housing and Urban Development,

EEOC Appeal No. 01995528, et al. (February 2, 2001).

On March 14, 2002, the agency issued another final decision on Agency

No. FW-99-06, which is the subject of the instant appeal. The agency

again dismissed the complaint. Specifically, claims (1), (2), and (4)

were dismissed on the grounds that they alleged dissatisfaction with the

processing of a previously filed complaint. Alternatively, claim (2)

was dismissed for failure to state a claim. Claim (3) was also dismissed

for failure to state a claim. The agency determined that complainant had

alleged discrimination on the basis of reprisal, but that �the activity

for which you claim reprisal was taken was not protected EEO activity.�

The agency also dismissed claim (3) on the alternative ground that it

stated the same claim complainant raised in a prior grievance.

Claims 1, 2, and 4

EEO Regulation 29 C.F.R. � 1614.107(a)(8) provides that the agency shall

dismiss a complaint that alleges dissatisfaction with the processing of

a previously filed complaint. Further, under Management Directive 110,

dissatisfaction with the processing and adjudication of prior complaints

must be raised within the underlying complaint, not a new complaint.

In claim 1, complainant alleged that the agency failed to investigate her

previous EEO complaints; in claim 2, complainant alleged that the agency

gave false information in response to a congressional inquiry about the

processing of her previous EEO complaints; and in claim 4, complainant

alleged that the agency denied her the opportunity to file an affidavit

for a previous complaint. Upon review, we determine that claims 1, 2,

and 4 all involve complainant's dissatisfaction with the processing of

prior EEO complaints. Consequently, we find that the agency properly

dismissed claims 1, 2, and 4.<1>

Claim 3

EEOC Regulation 29 C.F.R. � 1614.301(a) states that when a person is

employed by an agency subject to 5 U.S.C. � 7121(d) and is covered by a

collective bargaining agreement that permits claims of discrimination to

be raised in a negotiated grievance procedure, a person wishing to file a

complaint or grievance on a matter of alleged employment discrimination

must elect to raise the matter under either part 1614 or the negotiated

grievance procedure, but not both. An aggrieved employee who files

a grievance with an agency whose negotiated agreement permits the

acceptance of grievances which allege discrimination may not thereafter

file a complaint on the same matter under this part 1614 irrespective

of whether the agency has informed the individual of the need to elect

or whether the grievance has raised an issue of discrimination.

As noted above, in claim (3), complainant alleged that the agency failed

to adjust her leave and the effective date of her 1998 within-grade

increase, which had an adverse impact on complainant's time and

attendance leave records, pay and benefits, in reprisal for prevailing

in a Workers' Compensation claim and repayment of part of the 688 hours

of AWOL that she was charged. The record reveals that in a grievance

filed September 13, 1996, complainant alleged that the agency subjected

her to verbal AWOL suspensions without due process. In an arbitrator's

decision on the matter, the grievance issues were described as including

a five-day suspension and "continuing enforced verbal AWOL suspension."

While both the EEO complaint and the grievance make reference to AWOL,

we find that the EEO complaint encompasses much more. Complainant raises

not only concerns with her leave records, but also pay and benefits.

Moreover, it appears that complainant's EEO complaint concerns actions

taken by the agency after the AWOL issues raised in her grievance.

We find that the record does not establish that claim (3) addresses

the same matter that was raised in the September 13, 1996 grievance.

Accordingly, the agency's decision to dismiss the complaint, pursuant

to 29 C.F.R. � 1614.107(a)(4), is reversed.

Finally, the Commission finds that the agency improperly dismissed

claim (3) for failure to state a claim. The agency determined that

claim (3) failed to state a claim because complainant alleged that

the agency retaliated against her for filing a Workers' Compensation

claim, a form of reprisal that is not protected by EEO Regulations.

The record reveals that complainant termed the alleged discrimination

in claim (3) as motivated by �reprisals for my winning my workers'

compensation claims;� however, we determine that the record indicates

that complainant also alleged that claim (3) involved discrimination on

bases that are prohibited by EEO Regulations. We note that in letters

dated December 15, 1998 and January 26, 1999, the EEO Counselor attested

that complainant alleged in claim (3) that the agency subjected her to

discrimination on the bases of race/color, age, sex, disability, and in

reprisal for prior EEO activity. Further, the Counselor's Report stated

that claim 3 involved discrimination on the bases of race/color, age, sex,

disability, and reprisal for EEO activity. Moreover, complainant makes

a general assertion in her formal complaint that all of the claims in her

formal complaint involve discrimination on the bases of race/color, sex,

age, disability, and in reprisal for prior EEO activity. Consequently,

we determine that claim (3) states a claim of unlawful discrimination

on the bases of race/color, age, sex, disability and reprisal for prior

EEO activity.

Accordingly, the Commission AFFIRMS the agency's dismissal of claims (1),

(2), and (4). The Commission REVERSES the agency's dismissal of claim (3)

and REMANDS this claim to the agency for further processing in accordance

with the ORDER below.

ORDER (E0900)

The agency is ordered to process the remanded claim in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claim within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue

to complainant a copy of the investigative file and also shall notify

complainant of the appropriate rights within one hundred fifty (150)

calendar days of the date this decision becomes final, unless the matter

is otherwise resolved prior to that time. If the complainant requests a

final decision without a hearing, the agency shall issue a final decision

within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

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)

(1994 & Supp. IV 1999). 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 (M0701)

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 (T0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

March 24, 2003

__________________

Date

1Because we affirm the agency's dismissal of

claim 2 for the reason stated herein, we find it unnecessary to address

alternative dismissal grounds.