01990606_r
10-06-1999
Michele Y. Wells, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Michele Y. Wells, )
Appellant, )
)
v. ) Appeal No. 01990606
) Agency No. DOT 4-98-4089
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint 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. The final agency decision was issued on August
26, 1998. The appeal was postmarked October 26, 1998. Accordingly,
the appeal is considered timely<1> (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
On July 31, 1998, appellant filed a formal complaint, alleging that she
was the victim of unlawful employment on the bases of race, color, and
reprisal when she was not considered for the position of Administrative
Technician, in May 1997. Appellant alleged that she submitted a bid
for the subject position, which had an area of consideration identified
as �facility-wide.�
On August 26, 1998, the agency issued a final decision, dismissing
appellant's complaint for failure to state a claim. Specifically,
the agency determined that the announcement for the posted position
was identified as a �facility-wide announcement� for the Indianapolis
Flight Standards District Office. The agency determined that at the
time of appellant's application, she was assigned to the agency's Airway
Facilities Sector Maintenance Office and therefore did not meet the
criterion of the facility wide announcement.
On appeal, appellant argues that union officials have informed her that
everyone who works in the building where appellant is employed is deemed
a �facility-wide� employee; that there is confusion of the definition of
the term �facility-wide;� and that agency management arbitrarily alters
the term to meet its needs, as well as to exclude her for consideration.
In separate correspondence, appellant requests consolidation of the
instant complaint with another EEO complaint she filed (Complaint No. DOT
4-97-075), which appellant indicated is pending a hearing before an
Administrative Judge. Appellant argues that the matter contained in
Complaint No. DOT 4-97-075 contains a parallel issue involving agency
denials of progressive advancement.
In response, the agency argues that appellant's complaint was properly
dismissed for the reasons set forth in its final decision. The agency
also argues that because the instant complaint was dismissed for failure
to state a claim, appellant has no right to a hearing and that there is
no merit to her request that the instant complaint be consolidated with
a previously filed complaint.
EEOC Regulation 29 C.F.R. �1614.107(a) provides for the dismissal
of a complaint which fails to state a claim within the meaning of
29 C.F.R. �1614.103. In order to establish standing initially under
29 C.F.R. �1614.103, a complainant must be either an employee or an
applicant for employment of the agency against which the allegations of
discrimination are raised. In addition, the allegations must concern an
employment policy or practice which affects the individual in his capacity
as an employee or applicant for employment. 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; �1614.106(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).
The only proper questions in determining whether an allegation is
within the purview of the EEO process are (1) whether the complainant
is an aggrieved employee and (2) whether she has alleged employment
discrimination covered by the EEO statutes. An employee is "aggrieved"
if she has suffered direct and personal deprivation at the hands of the
employer. See Hobson v. Department of the Navy, EEOC Request No. 05891133
(March 2, 1990). Here, appellant alleges that she unsuccessfully
submitted a bid for the position of Administrative Technician in May 1997.
Appellant's allegation is sufficient to render her an aggrieved employee.
Because appellant has alleged that the adverse action was based on race,
color, and reprisal, she has raised an allegation within the purview of
the EEOC regulations.
With regard to the agency's argument that appellant, as an employee of
the Airway Facilities Sector Maintenance Office, was out of the area of
consideration for the subject position, the Commission finds that the
agency has articulated a reason that goes to the merits of appellant's
complaint, and is irrelevant to the procedural issue of whether she
has stated a justiciable claim. See Ferrazzoli v. USPS, EEOC Request
No. 05910642 (August 15, 1991).
Accordingly, the agency's decision to dismiss appellant's complaint
for failure to state a claim was improper and is REVERSED. Appellant's
complaint is REMANDED to the agency for further processing in accordance
with this decision and applicable regulations.<2>
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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:
October 6, 1999
_________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 The dismissal of a complaint or a
portion of a complaint may be appealed to the Commission within
thirty (30) calendar days of the date of the complainant's receipt
of the dismissal or final decision. See 29 C.F.R. �1614.402(a).
Because the agency failed on appeal to supply a copy of
the certified mail receipt or any other material capable of
establishing that date, the Commission presumes that the appeal was
filed within thirty (30) calendar days of the date of appellant's
receipt of the final decision.
2 The Commission notes that on appeal, appellant requests consolidation
of the instant complaint with a previously filed EEO complaint (Complaint
No. 4-97-075). EEOC Regulation 29 C.F.R. �1614.606 provides that �two
or more complaints of discrimination from the same complainant may
be consolidated by the agency or the Commission for joint processing
after appropriate notification to the parties.� On remand, the agency
is advised to consider possible consolidation of the instant complaint
with Complaint No. 4-97-075.