Luev.Sanders, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionSep 14, 1999
01986456 (E.E.O.C. Sep. 14, 1999)

01986456

09-14-1999

Lue V. Sanders, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Lue V. Sanders v. Department of the Treasury

01986456

September 14, 1999

Lue V. Sanders, )

Appellant, )

)

)

v. ) Appeal No. 01986456

) Agency Nos. 98-2178

) 98-2268M

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Agency. )

______________________________)

DECISION

On August 25, 1998, appellant filed a timely appeal of August 5 and 14,

1998 final agency decisions, which were received by appellant on August

11 and 17, 1998, respectively, dismissing her complaints, pursuant to 29

C.F.R. ��1614.107(a) and (d), for stating the same claim that is pending

before the agency, for failure to state a claim, and/or for raising the

same matter in an appeal to the Merit Systems Protection Board (MSPB).

Agency No. 98-2178:

In the August 5, 1998 final decision, the agency identified the

allegations of the April 14, 1998 complaint, as whether appellant was

discriminated against when management and agency employees provided false

statements in connection with an Inspection investigation and an EEO

counseling report involving appellant. The agency stated that appellant

previously filed an EEO complaint, Agency No. 98-2005, on October 9, 1997,

wherein she alleged that she was subjected to a hostile work environment

when on or about June 23, 1997, the agency initiated an Inspection

investigation of an allegation that in February 1997, she unlawfully

researched computerized taxpayer information and an allegation that in

March 1997, she falsified her time sheet. The agency also indicated

that during the investigation of the prior complaint, appellant indicated

that the identified agency Inspector and managerial officials made false

statements in connection with the Inspection investigation. The agency

indicated that the prior complaint was pending before the agency.

The agency further stated that appellant's allegation concerning the

agency's improper processing of her prior EEO complaints, including

Agency No. 98-2005, was not processable as a separate allegation of

discrimination.

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.

Upon review, we find that the allegation in the present complaint and the

prior complaint, Agency No. 98-2005, involve the same claim concerning

appellant's Inspection investigation of June 23, 1997, which is pending

before the agency.

With regard to the allegation concerning the agency's improper processing

of appellant's prior complaints, the Commission has held that allegations

of improper processing do not state separate processable claims.

See Kleinman v. USPS, EEOC Request No. 05940579 (September 22, 1994);

Story v. USPS, EEOC Appeal No. 01965883 (March 13, 1997). When such

allegations are raised, the agency should refer the complainant to the

agency officials responsible for the quality of complaint processing,

and those individuals should earnestly attempt to resolve dissatisfaction

with the complaints process as early as possible. See EEO MD 110 (4-8).

Agency No. 98-2268M:

In the August 14, 1998 final decision, the agency identified the

allegation of the July 31, 1998 formal complaint as whether appellant

was discriminated against when she was terminated from her employment

with the agency effective June 9, 1998. The agency stated that appellant

raised the termination issue in her MSPB appeal filed on June 9, 1998.

EEOC Regulation 29 C.F.R. �1614.107(d) provides, in part, that the

agency shall dismiss a complaint or a portion of a complaint where the

complainant has previously raised the matter in an appeal to the Merit

Systems Protection Board.

Upon review, we find that the present allegation and appellant's

MSPB appeal, previously filed, involve the same matter concerning her

termination of June 9, 1998. The record indicates that the MSPB appeal

was subsequently resolved through a settlement agreement dated September

1, 1998. Accordingly, the agency's final decision is hereby AFFIRMED.

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. 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 (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:

Sept. 14, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations