Joan M. Thomas, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionApr 10, 2000
01986709 (E.E.O.C. Apr. 10, 2000)

01986709

04-10-2000

Joan M. Thomas, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.


Joan M. Thomas v. Department of Defense

01986709

April 10, 2000

Joan M. Thomas, )

Complainant, )

)

v. ) Appeal No. 01986709

) Agency No. TA-98-012

William S. Cohen, )

Secretary, )

Department of Defense, )

(Defense Logistics Agency), )

Agency. )

____________________________________)

DECISION

On September 10, 1998, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) pertaining to her

complaint of unlawful employment discrimination in violation of the Age

Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �

621 et seq. <1> The agency characterized her complaint as alleging that

she was subjected to discrimination on the bases of age (DOB 4/30/32)

and reprisal for prior EEO activity concerning the following issues:

References to alleged performance appraisal incidents in 1995 and 1996,

an alleged age remark [by a named Branch Chief], and an unspecified

on the job training incident (with no corresponding date);

An alleged remark made by the Commodity Business Unit Chief, Directorate

of Subsistence;

Not being referred for promotion due to the scoring and evaluation of

her application and performance appraisal for the position of Commodity

Logistics Specialist (GS-301-5, target 9, Job Opportunity Announcement

DPSC-83-97); and

She was [again] denied the opportunity for promotion in April 1998

(due to the scoring and evaluation of her application).

Pursuant to EEOC Regulations, the agency dismissed claim (1) for

untimely EEO Counselor contact, and claims (2) through (4) for failure

to state a claim. Specifically, the agency determined that because

complainant's March 12, 1998 initial EEO Counselor contact occurred

more than forty-five days after the incidents raised in claim (1),

it was untimely. With regard to claim (2), the agency determined that

because the comment described was unaccompanied by a concrete agency

action, complainant failed to show how she was aggrieved in a term,

condition or privilege of employment. For claims (3) and (4), the

agency determined that because complainant's rating of her application

was the result of merit promotion application procedures and the generic

crediting plan approved by the union, it was not a policy or practice

taken by the agency, and therefore failed to allege a discriminatory

action or state a claim against the agency.

On appeal, complainant specifically appeals the dismissal of claims (3)

and (4), and makes clear that the matters in her complaint described in

claims (1) and (2) were merely background evidence to "the two instances

about which the EEO complaint is made." Therefore, the Commission will

not address the propriety of the agency's actions with regard to claims

(1) and (2), but rather, we AFFIRM the dismissal of claims (1) and (2)

as separate issues in accordance with complainant's contentions.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(1)) provides, in relevant part, that an

agency shall dismiss a complaint that fails to state a claim. 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).

After a review of the agency's final decision, it seems that the agency

has addressed the merits of complainant's complaint without a proper

investigation as required by the regulations. We find that the agency's

articulated reason for the action in dispute, i.e., that the rating of

complainant's applications was the result of merit promotion application

procedures and the generic crediting plan approved by the union, 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). Despite the

agency's assertion to the contrary, complainant's claims concern agency

actions that she has alleged are discriminatory. Therefore, the agency

improperly dismissed claims (3) and (4).<2> Accordingly, the agency's

final decision dismissing claims (3) and (4) is REVERSED. Claims (3)

and (4) are hereby REMANDED to the agency for further processing in

accordance with this decision and the Order below.

ORDER

The agency is ORDERED to process the remanded claims (3) and (4) in

accordance with 64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified

and hereinafter referred to as 29 C.F.R. � 1614.108). The agency shall

acknowledge to the complainant that it has received the remanded claims

(3) and (4) 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 (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T1199)

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:

April 10, 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.

2The agency's FAD noted that claim (4) was not counseled with the other

issues it listed in the complaint, and that after it was separately

counseled a short time later, complainant never filed a formal complaint

on the issue. Although the record indicates that the specifics of claim

(4) were not mentioned in the first counselor's report, the claim was

a part of complainant's formal complaint filed after her original EEO

counseling. Since claim (4) is like or related to a matter on which

complainant received counseling, we find that it is correctly addressed

as part of complainant's complaint.