Kathy Ellingwood, Complainant,v.William M. Daley, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionAug 28, 2000
01a05008 (E.E.O.C. Aug. 28, 2000)

01a05008

08-28-2000

Kathy Ellingwood, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.


Kathy Ellingwood v. Department of Commerce

01A05008

August 28, 2000

.

Kathy Ellingwood,

Complainant,

v.

William M. Daley,

Secretary,

Department of Commerce,

Agency.

Appeal No. 01A05008

Agency No. 00-63-00799D

DECISION

The instant matter is being processed pursuant to 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 of 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.

The Commission's Washington, D.C. Field Office issued a decision

concerning the instant complaint on May 24, 2000. In her complaint,

complainant alleged discrimination on the basis of retaliation when she

was demoted, and then told to quit or be terminated when she questioned

the demotion. The Field Office dismissed the complaint for failure to

state a claim because complainant had not engaged in prior protected

activity.

On appeal, complainant argues that she was terminated because she opposed

her wrongful demotion. She also contends that she received less pay

than her coworkers, and that the coworkers learned of her salary in

violation of the Privacy Act.

EEOC Regulations allow complaints to be dismissed for failure to state

a claim. See 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and

hereinafter cited as 29 C.F.R. � 1614.107(a)(1)) . To state a claim,

complainant must allege harm to a term, condition, or privilege of her

employment on the basis of race, color, religion, sex, national origin,

age, or disabling condition. See Diaz v. Department of the Air Force,

EEOC Request No. 05931049 (April 21, 1994).

EEOC Regulation 29 C.F.R. � 1614.103(a) provides that individual and

class complaints of employment discrimination and retaliation prohibited

by Title VII (discrimination on the bases of race, color, religion,

sex and national origin), the ADEA (discrimination on the basis of

age when the aggrieved individual is at least forty years of age),

the Rehabilitation Act (discrimination on the basis of disability),

or the Equal Pay Act (sex-based wage discrimination) shall be processed

in accordance with this part. EEOC Regulation 29 C.F.R. � 1614.101(b)

provides that no person shall be subject to retaliation for opposing any

practice made unlawful by Title VII of the Civil Rights Act (Title VII)

(42 U.S.C. � 2000e et seq.), the Equal Pay Act (29 U.S.C. � 206(d)) or the

Rehabilitation Act (29 U.S.C. � 791 et seq.) or for participating in any

stage of administrative or judicial proceedings under these statutes.

In the present complaint, complainant presents no evidence that she

engaged in prior EEO activity, or otherwise alleged violations of the

relevant statutes in some other forum. Complainant's query to her

supervisor concerning the reasons for her demotion do not qualify as

prior protected activity.

Complainant claims a violation of the Equal Pay Act on appeal. This

Act only applies to claims of unequal pay for women based on gender.

Complainant never raises this claim in reference to her gender. To the

contrary, the Commission finds evidence that complainant's supervisor

and coworkers also are women.

Complainant also alleges violations of the Privacy Act, 5 U.S.C. �

552(g)(1). Privacy Act violations, concerning the disclosure of

identifiable information contained in federal systems of records,

is enforceable only in the United States District Courts. See Bucci

v. Department of Education, EEOC Request Nos. 05890289, 05890290, 05890291

(April 12, 1989). The Commission does not have the authority to enforce

the Privacy Act.

Complainant has not raised any cognizable claims under statutes enforced

by the Commission. Therefore, the Field Office's dismissal is AFFIRMED.

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 (S0400)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

August 28, 2000

__________________

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 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.