01975183
11-04-1998
Lori A. Salazar, )
Appellant, )
) Appeal Nos. 01975183
) 01975184
v. ) Agency Nos. 97-124-AL
) 97-125-AL
) 97-133-AL
Bill Richardson, )
Secretary, )
Department of Energy, )
Agency. )
______________________________)
DECISION
On June 19, 1997, appellant filed an appeal with this Commission
pertaining to her complaints of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., and �501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq.
On March 10, 1997, appellant sought counseling concerning her complaints.
Informal efforts to resolve her concerns were unsuccessful. Twice on
April 25, 1997 and once on May 16, 1997, appellant filed formal complaints
alleging that she was subjected to discrimination on the bases of race
(Hispanic), national origin (Hispanic), mental disability (paranoia, Post
Traumatic Stress Disorder (actual and/or perceived)), and in reprisal
for prior EEO activity when:
On March 4, 1997, appellant was not selected for the Management Assistant
("MA") position vacancy in the Human Resources ("HR") Division;
On March 4, 1997, appellant was not selected for the Assistant Manager's
Secretary ("AMS1") position vacancy in the Office of Energy, Science,
and Technology ("OEST"); and
On March 5, 1997, appellant was not selected for the Assistant Manager's
Secretary ("AMS2") position vacancy in the Office of Management and
Administration ("OMA");
Further, in each of appellant's formal complaints she alleged that
the instant non-selections were not isolated incidents, but rather
were part of an ongoing series of related actions that denied her
advancement opportunities. Specifically, appellant alleged that since
1993, she was denied approximately twenty (20) positions for which she
applied. Appellant asserted that the agency maintained a discriminatory
selection/promotion process that enabled people outside her protected
class and with less qualifications to be promoted to the positions she
sought ("selection/promotion process claim").
By two letters dated May 21, 1997, and a third dated June 12,
1997, the agency notified appellant that allegations (1) through
(3) were being accepted for investigation. None of the letters
addressed the selection/promotion process claim. As a result, on
June 17, 1997, appellant's attorney sent a letter requesting that
the agency notify appellant of its acceptance and/or dismissal of the
selection/promotion process claim. In case the agency's failure to
address the selection/promotion process claim was deemed dismissal of
the matter, on June 19, 1997, appellant's attorney sent the Commission
notice of appeal of that decision.
On July 11, 1997, the agency issued a consolidated final decision
("FAD") addressing appellant's allegations. The FAD accepted only
allegation (3) for investigation, and, after identifying sixteen (16)
positions appellant sought between July 1993, and May 1996, dismissed
the selection/promotion process claim for untimely EEO Counselor contact.
Specifically, the agency determined that appellant's initial EEO Counselor
contact occurred more than forty-five (45) days from the dates on which
she was not selected, and was, therefore, untimely. The agency further
determined that appellant failed to establish a continuing violation
because the individual non-selections were specific, discrete incidents
which should have triggered appellant's awareness and duty to exercise
her EEO rights. Also, the agency found that each vacancy existed in
different employing offices, and, therefore, equated to employment
decisions made by different selecting officials. Finally, the agency
determined that appellant raised the identical allegation in a prior case
she filed (Agency No. 97-101-AL), which was dismissed by letter dated
May 6, 1997. Accordingly, in the alternative, the agency dismissed the
selection/promotion process claim pursuant to 29 C.F.R. �1614.107(a),
for stating claims that were previously decided by the agency. The FAD
did not address allegations (1) or (2).
The Commission notes that the FAD did not specifically address allegations
(1) and (2). However, the record contains two letters dated May 21,
1997, in which the agency accepted these allegations for investigation.
As there is no evidence suggesting that the agency rescinded its
acceptance of these allegations, the Commission assumes that they will
be processed in conjunction with allegation (3).
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same
claim that is pending before or has been decided by the agency or
Commission. In the instant case, as the record reveals that appellant
raised the selection/promotion process claim in a prior complaint,
identified as Agency No. 97-101-AL. It is inappropriate to attempt
to re-litigate that matter in the instant complaint. Consequently,
dismissal of the selection/promotion process claim was proper pursuant
to 29 C.F.R. �1614.107(a).<1>
Accordingly, the agency's decision to dismiss the selection/promotion
process claim was proper and is AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Nov. 4, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations1Since we are affirming the agency's
dismissal of the selection/promotion process claim on the grounds
that it states the same claim that was pending before or decided
by the agency or Commission, we will not address the agency's
alternative grounds for dismissal, i.e., that it was untimely.